Family Law: Fathers – Paternity / Legitimation
In Georgia, if a married woman gives birth, the husband is assumed to be the legal father and has all parental rights and obligations. However, if an unmarried woman gives birth, the father has no parental rights unless the steps are taken for legitimation. Even if the father’s name is on the birth certificate, the father is considered only a “putative” father, meaning he is potentially the biological father and not the legal father. In such a case, the mother has full parental control over the child and the father has no rights in regards to the child but he may still be responsible for parental obligations such as child support. This doesn’t mean that the father of an unlegitimated child can’t help raise the child or help support the child. It just means legally he has no basis to do so.
What is paternity?
Paternity is a scientific determination of the identity of the biological father through DNA testing. This is the process that you often see on afternoon television talk shows. Legally, it can impose on the biological father the obligation to provide child support. However, paternity alone does not make the putative father the legal father, it just determines whether he is the biological father. Once it’s determined that he is the biolgoical father, obligations can be imposed. But in order for the biological father to have legal rights he must go through the process of legitimation. Essentially paternity means that the biological father gets all the obligations of being a parent with no legal right to the benefits of being a parent.
What is administrative legitimation?
Essentially there are two types of legitimation: administrative and judicial. Administrative is the easiest and most basic way to legitimate a child, but is not full legitimation. Generally, Administrative Legitimation takes place as the hospital at the time of birth at the same time the father’s name is put on the birth certificate. Each hospital has a different name for this document, but it’s basically an acknowledgement by both the father and the mother. The father acknowledges that he is the father of that child. The mother acknowledges that he is the father of that child. By completing the form, he is then considered the biological father with all rights and obligations, and a paternity test is not necessary. This is considered the easiest because it doesn’t cost anything extra and can be done at the hospital without going through the court.
However, with ease comes trouble as this is not a full legitimation. Going through this process actually gives a father no custodial or visitation rights. There is also some case law in Georgia that indicates that administrative legitimation does not automatically make the child an heir of the father when the father dies. There are some other problems with this process, and therefore a judicial legitimation or outright adoption might be a better course of action.
What is judicial legitimation?
Judicial legitimation is the process the father goes through to establish his legal rights and obligations to the child. It involves filing a petition with the court and usually obtaining a paternity test, unless an administrative legitimation has been executed. With a judicial legitimation, the putative father is determined to be the biological father and the legal father of the child. It is important to remember that being the biological father doesn’t not necessarily mean you will be legitimized; you still must prove to the court that you are willing to parent, bond, and support the child. During this process, it is also possible to get the child’s name changed. Yet again, it’s important to remember that the legitimation or changing of the child’s name will always require the judge to determine that doing so is in the best interests of the child.