Written by attorney David A. Canale

Legitimation of Children Under GA Law

Fathers of children born out of wedlock generally have a small window to assert their rights and establish a legal relationship with a child. Under Georgia law, the biological father has an "opportunity interest" in establishing a relationship with the child. This interest can be lost if the father does not act in a timely manner to establish a relationship and provide for the child. Frequently, biological fathers fail to act timely and only initiate legal action when a child is several years old. At that point, a father who has not established and maintained a relationship with the child will undoubtedly be met with a defense from the mother that the father has "abandoned his opportunity interest" in establishing his relationship with his child.

Generally, a father can prove that he has not abandoned his opportunity interest by showing that he was actively involved in the child’s life and in caring for the mother since the time of the pregnancy. If a pregnant woman refuses to allow a biological father to establish a relationship with his child, then he must act quickly to protect the relationship through legal action. The best course of action is for the father to maintain contact with the pregnant mother throughout the pregnancy and then to file a legitimation action immediately upon the birth of the child. If the mother refuses contact from the father, that he should document all of his efforts in writing to substantiate his claim that he has not abandoned his opportunity interest.

In a recent case,Magdanal v. Hendrix, the Georgia Court of Appeals affirmed a Cobb County Superior Court order legitimating the minor child and concluded that the trial court had not clearly erred in finding that the father in that case had not abandoned his opportunity interest. The evidence showed that the mother and father had been involved in a three year relationship which ended just before the birth of their child. The biological father requested a DNA test and also initiated a child support case for the child. The father pay child support and was eventually confirmed by the DNA test as the father. He eventually filed a legitimation proceeding, in which the trial court granted the legitimation. On appeal, the Court affirmed that the trial court’s conclusion that the father did not abandon his opportunity interest was not clearly erroneous and should not be reversed.

It is clear from this case and others preceding it that a biological father of the child born out of wedlock can take steps to establish a relationship with his child. However, the time frame for doing so is not open-ended, and Georgia law also provides that a man who engages in sexual relations with a woman is statutorily on notice that he may have conceived a child with her. This "opportunity" to establish a relationship with his child therefore begins at conception, and a man who ignores this opportunity does so at his peril. The best advice is to take action immediately. Our firm has experienced attorneys who can help you with legitimation, custody and other family law issues. Please contact our office for assistance with your case.

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