Legitimation of a Minor Child Born Out of Wedlock, and Abandonment of Opportunity Interest

By:  Candace M. Williams
Family Law Department Head
Attorney at Law
Coleman, Chambers, Rogers, & Williams, LLP

When a child is the product of parents who are not married, only the mother of the child is entitled to legal rights and custody of the child, unless the father legitimates the child.  O.C.G.A. § 19-7-25.  If a father wants to obtain legal rights to a child, he must file an action for legitimation under O.C.G.A. § 19-7-22. Pruitt v. Lindsey, 261 Ga. 540 (1991).  A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother. O.C.G.A. § 19-7-22(a).  The mother of the child is entitled to notice of the action and shall have the opportunity to object to the petition and show that legitimation is improper. O.C.G.A. § 19-7-22(b).   A biological father has no absolute right to the grant of a petition for legitimation. Ghrist v. Fricks, 219 Ga. App. 415 (1) (1995).      "Upon legitimation, the father stands in the same position as any other parent as to custody of the legitimated child and has a claim to parental and custodial rights" See: Gregg v. Barnes, 203 Ga. App. 549, 551 (1992); Mitchell v. Ward, 231 Ga. 671, 672 (1974); Sims v. Pope, 228 Ga. 289, 291 (1971).

The best interest of the child is the test which applies to legitimation actions.   Davis v. Labrec, 274 Ga. 5 (2001).   The petition for legitimation may also include claims for visitation, parenting time, or custody.  If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time or custody based on the best interest of the child standard. O.C.G.A. § 19-7-22(f)(1).   An action for legitimation will not automatically confer visitation rights on the father.  He must include in his petition for legitimation a request that he be awarded custodial and/or parenting time with the child and show that the same serves the child’s best interest. In re JBK, 169 Ga. App. 450 (1984). Further, in a case involving allegations of family violence, the provisions of O.C.G.A. § 19-9-3(a)(4) will also apply. These factors include (A) the primary safety and well-being of the child and the parent who is a victim of family violence, and (B) the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury or assault to another person and (C) a parent’s absence or relocation because of an act of violence by the other parent for a reasonable time shall not be deemed an abandonment of the child for purposes of custody determination. O.C.G.A. § 19-9-3(a)(4)(A),(B)and(C).

In considering a legitimation petition, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. In the Interest of M.K. 288 Ga.App. 71 (2007). A biological father’s opportunity interest to develop a relationship with a child born out of wedlock begins at conception, but may be abandoned by the unwed father if not timely pursued. Matthews v. Dukes, 314 Ga.App. 782 (2012). Factors that may support a finding of abandonment by a biological father of his opportunity interest to develop a relationship with a child born out of wedlock include his inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child. Id.(2012).

The Georgia Court of Appeals has found an abandonment of opportunity interest and denied a petition for legitimation when a biological father failed to provide significant emotional and financial support to the child, failed to pay child support for over two (2) years and father’s last visit with the child was over two (2) years prior to the action (Smith v. Soligon 254 Ga.App. 172 (2002)); when father provided no support when mother decided to have the baby and denied paternity when mother brought criminal abandonment charges and her efforts to help establish a paternal relationship were unavailing (In Re JKB 169 Ga.App. 450 (1984)); and when father waited four (4) years after birth to initiate a relationship with the child and filing petition, there was no evidence that any action by mother prevented him having a paternal relationship, and his own voluntary commission of criminal acts resulted in eighteen (18) months of incarceration and residential drug treatment during which he was unable to contact mother (Neill v. Brannon 320 Ga.App 820 (2013)).

The Georgia Court of Appeals have denied the defense of abandonment of opportunity interest and granted a petition for legitimation when father tried to discuss pregnancy and birth with mother but she refused, mother did not seek assistance from father during pregnancy because she did not want any contact with him and father instituted legitimation proceedings before the child’s birth (Bowers v. Pearson 271 Ga.App. 266 (2005)); and when father provided medical insurance to mother, allowed mother to live in his home during a portion of the pregnancy, visited mother at the hospital on the day of the child’s birth, amended an existing claim to include a claim for legitimation less than two (2) months after the birth, and reimbursed mother for some of the medical bills associated with the child (Morris v. Morris 309 Ga.App. 387 (2011)).

The defense of abandonment of opportunity interest is fact driven, and unique to each case.   if you would like more information on your legal rights as it relates to legitimation, paternity, children born out of wedlock, and the abandonment of opportunity interest call one of our experienced family law attorneys at Coleman, Chambers, Rogers, & Williams, LLP at 770-534-3770.