17.15 Legitimation

Georgia State Seal

Georgia Division of Family and Children Services
Child Welfare Policy Manual

Chapter:

(17) Legal

Policy Title:

Legitimation

Policy Number:

17.15

Previous Policy Number(s):

3.17

Effective Date:

March 2023

Manual Transmittal:

2023-02

Codes/References

O.C.G.A. § 15-11-2 Definitions
O.C.G.A. § 19-7-22 Petition for Legitimation of Child; Requirement that Mother be Named as a Party; Court Order; Effect; Claims for Custody or Visitation; Third-Party Action for Legitimation in Response to Petition to Establish Paternity
O.C.G.A. § 19-8-1 Definitions
O.C.G.A. § 19-8-9 Revocation of Surrender of Rights; Time Limit; Effect of Voluntary Surrender of Rights by Legal Mother

Requirements

The Division of Family and Children Services (DFCS) will inform fathers about the legitimation process.

Procedures

When an alleged biological father expresses a desire to legitimate his child, the Social Services Case Manager (SSCM) will:

  1. Determine whether the father has established paternity:

    1. Ask the father if he completed a Paternity Acknowledgement (PA) Form at the hospital or birthing facility, the vital records office of the county where the child was born or the State Office of Vital Records;

    2. Ask the father if paternity was established through the Division of Child Support Services (DCSS) or via a court order, if a PA Form was not completed;

    3. Obtain copies of any PA Form from the State Office of Vital Records, verification of paternity from DCSS or any orders establishing paternity from the court and upload the documents into External Documentation in Georgia SHINES.

  2. Determine whether it is appropriate to initiate Deoxyribonucleic acid (DNA) paternity testing in accordance with policy 19.23 Case Management: Paternity Testing.

  3. Inform the father that he may file a petition for legitimation with the juvenile court when a dependency proceeding is pending, otherwise, the father may file in superior court;

  4. Advise the father to contact his attorney (if one has been appointed) to assist the father in filing a petition for legitimation.

    Do not give legal advice to the father concerning legitimating a child.

Social Services Supervisor

  1. Provide guidance to the SSCM regarding the legitimation process;

  2. Assist the SSCM in obtaining copies of the PA form, verification of paternity or orders establishing paternity, if necessary.

Practice Guidance

Biological Father

Biological father means a male who impregnated the biological mother resulting in the birth of a child.

The Official Code of Georgia defines a legal father as a male, who has not surrendered or had terminated his rights to a child, and who:

  1. Has legally adopted such child; or

  2. Was married to the biological mother of such child at the time such child was born or within the usual gestation period, unless paternity was disproved by a final order of a court of competent jurisdiction; or

  3. Married a legal mother of such child after the child was born and recognized the child as his own, unless such paternity was disproved by a final order of a court of competent jurisdiction; or

  4. Has legitimated such child by a final order pursuant to O.C.G.A. §19-7-22.

If a child was legitimated pursuant to O.C.G.A. § 19-7-21.1 prior to July 1, 2016, the legal father of the child continues to be the legal father despite the repeal of O.C.G.A. Section 19-7-21.1.

Legitimation

The biological father of a child (who is not the legal father) may file a petition for legitimation in the juvenile court of the county in which a dependency proceeding regarding the child is pending. If a dependency proceeding is not pending, then the biological father may file a petition in the superior court of:

  1. The county of residence of the child’s mother or person who has legal custody or guardianship of the child; or

  2. The county of residence of the child or the biological father, if the child’s mother, legal custodian or guardian resides outside the state or cannot be found in the state; or

  3. In the county in which the petition for adoption is pending, if a petition for adoption of the child is pending.

A legitimation petition may also include claims for visitation, parenting time or custody.

The court, upon determining paternity, may enter a decree that the child is legitimate, if a petition to establish paternity for purposes of obtaining child support is filed by DFCS and the father files a response asking for a decree legitimating the child.

When a mother’s parental rights have been terminated, either voluntarily or otherwise, she no longer has the right or authority to consent to the granting of a petition of legitimation for the same child.

A presumption against legitimation shall be created, if a court determines by clear and convincing evidence that the father caused his child to be conceived as a result of non-consensual sexual intercourse with the mother of his child or when the mother is less than 10 years of age.

If there is a pending criminal proceeding, the court shall stay discovery in the legitimation action until completion of the criminal proceeding.

Forms and Tools

Division of Child Support Services - Information on paternity establishment and legitimation