In general, when a child is born into a marriage, he or she is presumed to be the husband’s legal child.  Consequently, such a father has custodial rights to the child and stands on equal footing with the child’s mother.  This is also the case if a child is born out of wedlock and the parents subsequently marry.

When a child is born out of wedlock and the parents have not married, however, the father has no custodial rights until he “legitimates” the child.  Thus, until the child is legitimated, only the mother is entitled to physical and legal custody of the child.

Nevertheless, a biological father who has not legitimated is still legally required to support his child, and he is subject to child support laws in the same manner as a father who has legitimated.

Subject to various requirements, it is possible for a father to legitimate a child out of court through an “acknowledgement of legitimation.”  Hospitals sometimes provide acknowledgement of legitimation forms for new, unmarried parents to sign.

Under Georgia law, an acknowledgement of legitimation “means a written statement contained in a voluntary acknowledgement of paternity form indicating that a mother and father of a child born out of wedlock have freely agreed and consented that the child may be legitimated.”  O.C.G.A. § 19-7-21.1(a)(1).  Thus, both parents must consent to the acknowledgement of legitimation.  Further, such an acknowledgement must be made within one year of the child’s birth.  O.C.G.A. § 19-7-21.1(b).

It is significant, however, that a father who legitimates his child through such an out-of-court acknowledgement is not authorized “to receive custody or visitation until there is a judicial determination of custody or visitation.”  O.C.G.A. § 19-7-21.1(e).

Thus, when a father legitimates through an out-of-court acknowledgement, if he and the mother run into any disagreements with respect to visitation and custody, the father will have no such rights until there is a judicial determination respecting the appropriate visitation and custody arrangements.

If a father wishes to legitimate a child but the mother disagrees, the father may file a petition for legitimation pursuant to O.C.G.A.  § 19-7-22.  Legitimation is not automatic simply because a man is a child’s biological father.  Instead, courts consider issues such as whether the father has abandoned his opportunity interest in the child, whether the biological father is a fit parent, and whether legitimation would be in the best interests of the child.

If you are not sure whether your child has been properly legitimated, it is imperative to seek experienced legal counsel to determine whether you need to take affirmative steps to preserve your parental rights.  At the Berelc Law Office, we have handled hundreds of domestic cases and are well-versed in the ins and outs of legitimation law.

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