I'm in a middle of a divorce and i was wondering if the mother was trying to keep me from seeing my son and he was legally legitimized could she do that? Or could i go see him or pick him up without having to worry about getting in trouble.
You may have to get a paternity test to prove it. If the child is yours It doesnt matter if you were married.
The general rule in Georgia is that only the mother of a child born out of wedlock is entitled to custody, unless the father legitimates the child as provided in OCGA § 19-7-22 (the relevant statutory authority). However, under OCGA § 19-7-20(c), "the marriage of the mother and reputed father of a child born out of wedlock and the recognition by the father of the child as his shall render the child legitimate." In other words, marrying the mother and holding the child out as your own creates a legal tie between father and child. If both you and your wife are the child's biological and legal parents, then your wife is no more entitled to custody of your child than you until a Court enters an Order providing otherwise. That said, you should consult with a family law attorney, provide him or her all the relevant facts, get a fully informed opinion as to whether you are the legal father of the child, and seek advice about what your next steps should be in seeking parenting time or custody of the child in the divorce action on both a temporary and permanent basis. Good luck to you.
This answer is offered for informational purposes only. It is not offered as nor does it constitute legal advice. This answer does not constitute an attorney-client relationship. Do not rely on this answer in prosecuting or defending against any criminal or civil legal action. Speak to an attorney in your area about how to protect yourself and your interests.
The answer to your first question (is the child legitimated if we were married after the birth) is likely "No", but may depend on how long after the child's birth the two of you were married.
The answer to your second question (can the mother keep me from seeing my son if he is legally legitimated) is "No". If a child has been legally recognized as the legitimate child of the father, and there is no existing court order delineating who has custody when, then both parents have equal rights regarding being with the child. Neither parent can legally prevent the other parent from having the child in his/her custody unless and until there is a custody order put in place.
The answer to your third question (can I see him or pick him up without having to worry about getting in trouble) is "It depends". First of all, there is a question as to whether you are the legal and legitimate father to the child. Secondly, it matters how you define "trouble". Since you are married to the mother, and you have both represented that you are the father to the child, chances are the police would not interfere if they were called out. However, it is just not possible to state that with any certainty based on just the information you have provided.
It would be in your best interest to immediately contact a local family law attorney (especially if you anticipate having trouble from your wife). You need to determine if you actually have legitimated your child. If not, you need to determine how best to proceed in doing so such that your relationship with your son is protected. HIRE AN ATTORNEY RIGHT AWAY!
~ Kem Eyo
The above answer is a general explanation of legal rights and procedures. It does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.
Sign up to receive a 5-part series of useful information and advice about child custody law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline