Paternity Lawsuits and Legitimation
Paternity and legitimation are complex areas of law and can result in someone paying or receiving child support for a long time. Although closely related, Paternity and Legitimation have very different meanings under Georgia Law and which one you seek depends in large part who you are and what you stand to gain. In short, paternity suits are used to create a child support obligation, while legitimation suits are used to have a biological father declared a child’s legal father. Let Dan Palumbo help get you paid if your child’s father is unwilling to pay you or not paying enough. Or let Dan Palumbo help you be recognized under Georgia law as your child’s legal father.
Paternity Law O.C.G.A § 19-7-43
In all Superior Courts in the state of Georgia, including the Superior Courts in Cobb County, Gwinnett County and DeKalb County, a petition to establish paternity may be brought by:
- the child
- the mother of the child
- any relative in whose care the child has been placed
- the Department of Human Services in the name of the child
- the alleged father – however an alleged father may be better served bringing a Petition for Legitimation instead.
Talk to Dan Palumbo and let him analyze your case to help you choose what is in your and your child’s best interest.
Petition for Paternity and Court-Ordered Genetic Testing
When a Petition for Paternity has been filed before the birth of the child, the case will be stayed until after the birth of the child. In all Paternity cases, the court, either on its own motion or on the motion of any party, may order the mother, the alleged father, and the child or children to submit to genetic tests.
In any case, for the collection of child support involving the Department of Human Services in which the paternity of a child or children has not been established or in which the individual receiving services alleges that paternity rests in a person other than the previously established father, the Department of Human Services shall order genetic testing of the mother, the alleged father, and the child or children as specified in Code Section 19-7-45.
In most petitions to establish paternity, the alleged biological father may assert a third-party action for the legitimation of the child. Once paternity is established through genetic testing or if a voluntary acknowledgment of paternity has been made the court, pursuant to the provisions of Code Section 19-7-51, the court may enter an order or decree legitimating the child, provided that such is in the best interests of the child. However if a petition to establish the paternity is brought by the Department of Human Services, issues of name change, visitation, and custody will not be determined by the court until a separate petition is filed by one of the parents or by the legal guardian of the child, in accordance with Code Section 19-11-8. See more on Legitimation below.
Are You Sure You’re the Father? Disestablishment of Paternity
Dan Palumbo has represented clients who thought they were the father of a child, only to learn later that the child was not theirs. While Dan cannot help with the emotional strain this news may create, he can help with the financial drain this may have been causing.
If your case is in the state of Georgia, including DeKalb County Superior Court, Cobb County Superior Court, Fulton County Superior Court and Gwinnett County Juvenile Court, then O.C.G.A § 19-7-54 is the Statute used to set aside a determination of paternity.
If a male has been ordered to pay child support as the father of a child, a motion to set aside a determination of paternity may be made upon the grounds that the newly discovered evidence has come to the male’s knowledge since the Order. The Court will likely order genetic testing of the man and child. Presuming the genetic test results find that there is no probability the man ordered to pay child support is not the father and none of the below items are present, the man’s child support obligation will be terminated.
To disestablish a paternity order in the State of Georgia, the male cannot have:
- adopted the child
- been married to the mother while the child was conceived by artificial insemination
- prevented the biological father of the child from asserting his paternal rights with respect to the child
- Once the man had knowledge that he is not the biological father of the child he has not
- Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support
- Acknowledged his paternity of the child in a sworn statement
- Been named as the child’s biological father on the child’s birth certificate with his consent
- Been required to support the child because of a written voluntary promise
- Received written notice from the Department of Human Services, any other state agency, or any court directing him to submit to genetic testing which he disregarded
- Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46
- Proclaimed himself to be the child’s biological father
Confused? You may be, and rightfully so. The State has a vested interest in making men pay child support for children. Once a child support order has been issued the State does not want to run the risk of letting the man off the hook. Dan Palumbo will fight to end your child support once you learn that things are not as they appear.
I Want To See My Child – Legitimation O.C.G.A § 19-7-22
Are you a father seeking legal or physical custody/parenting time rights to your son or daughter? Do you want to be declared the legal father of your child? If you were never married to the mother of your child or children, you will need to file a legitimation/ paternity suit before any rights can be obtained. Call us to learn more about this Georgia-specific area of law.
In DeKalb County Superior Court, at 70 Haynes St, Marietta, GA 30090, Fulton County Superior Court, Juvenile Court, Gwinnett County Superior Court, or anywhere in the State of Georgia, if a father wants to gain the right to custody or visitation he must take the steps required by O.C.G.A. § 19-7-22 to “legitimate the child,” or, more correctly, to legitimate the relationship between himself and the child. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750 (1991).
Just because you are the “Biological father” of a child does not automatically legitimate you as the child’s legal father. In Cobb County Superior Court, Fulton County Superior Court, Juvenile Court, Gwinnett County Superior Court, or anywhere in the State of Georgia a “Legal father” is a male who has not surrendered or had terminated his rights the child and who:
- Has legally adopted the child
- Was married to the biological mother of the child at the time the child was born, unless paternity was disproved by a final order
- Married the legal mother of the child after the child was born and recognized the child as his own, unless paternity was disproved by a final order
- Has legitimated the child
The biological father legitimates his relationship with the child by filing a Petitioning in the Superior Court of the county of the residence of the child’s mother. If the mother, or other party having legal custody of the child, resides outside the state of Georgia, in any county, the petition may be filed in the county of the biological father’s residence or the county of the child’s residence. A legitimation petition may also be filed in Juvenile Court of the county in which a dependency proceeding regarding the child is pending.
See O.C.G.A 15-11-11.
An Order of Legitimation gives a father more rights that an Order of Paternity. A Paternity Order creates a child support obligation, while once the biological father is legitimated as the child’s legal father the child shall be capable of inheriting from the father and the father shall be capable of inheriting from the child in the same manner as if the child was born in lawful wedlock. Furthermore, the order will specify the name by which the child shall be known going forward.
A legitimation petition will result in child support being ordered, and may also include claims for visitation, parenting time, or custody. If the Parties are unable to agree on what works best the Court will base its decision on the best interests of the child standard.
Dan Palumbo is an experienced Family Law attorney. Let him help you today!