Navigating Custody Issues for Unmarried Parents

By Michelle Jordan

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According to the CDC’s National Center for Health Statistics, 44.9 percent of children born in Georgia are born to unmarried parents.1 Married parents have equal rights to children of the marriage and if they separate, a divorce or separate maintenance order will specify custody rights for the parents. Unmarried parents who are navigating custody issues may encounter various unexpected legal complications. This article provides some strategies for addressing the issues which may arise. Under Georgia law, if a child is born outside of marriage, the mother has sole legal and physical custody rights to the child. She exercises all parental power and is entitled to custody against the biological father (unless there is a court order to the contrary).2 Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in O.C.G.A. § 19-7-22. Otherwise, the mother may exercise all parental power over the child.3 This is true even if the father is listed on the child’s birth certificate or has a court order for child support through the Georgia DHS Department of Child Support Services.

Birth Certificate Issues

A child of unmarried parents will have only the mother’s name listed on the birth certificate unless the father and mother consent in writing to adding the father’s name.4 No paternity testing is required to add a father to the birth certificate. If the father is not present at the birth of the child he can add his name to the birth certificate with the mother’s consent through the Georgia State Office of Vital Records. Changes to the birth certificate may also be done in a legitimation petition, a complaint to establish paternity or a petition to amend a birth certificate.

Birth Certificate Amendment

If paternity of a child is determined by a court, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.5 If no father is listed on a birth certificate, the Georgia Department of Vital Records can amend a birth certificate if there is a court order for legitimation or if there is a properly executed acknowledgment of paternity.6 If the incorrect father is listed on the birth certificate of the child, the birth certificate may be corrected via a petition to amend the birth certificate or a petition for legitimation by the biological father or by including a claim for birth certificate amendment in another appropriate pending action.

Passports and Travel

Despite Georgia’s clear law providing that the mother has sole custody rights, a mother of a child born out of wedlock may have difficulties with some issues relating to her rights to the child when she is dealing with entities outside of Georgia.

For example, a mother who needs to obtain a passport for her child may encounter difficulties obtaining one if the father’s name is listed on the child’s birth certificate. In some cases, the passport office may refuse to issue a passport without the biological father’s written consent. If that consent cannot be obtained, an administrative option is available via the U.S. Department of State Form DS-5525 STATEMENT OF EXIGENT/SPECIAL FAMILY CIRCUMSTANCES FOR ISSUANCE OF A U.S. PASSPORT TO A MINOR UNDER AGE 16. If this form does not suffice, the mother can seek a court order declaring her sole custody rights including the right to obtain a passport without the consent of the other parent. This can be done in a Petition for Declaration of Custody. Under Georgia law, a court can issue a declaratory judgment even if other remedies are available to the party.7 If the absent father’s location is unknown, the order can be obtained after service by publication.

Another issue may arise when sending a child out of state for a visit with another parent. To avoid a situation where the other parent may refuse to return the child, the mother in Georgia may want to consider obtaining an order for custody in Georgia prior to sending the child out of state. If the child is being withheld and there is no order in place, the mother can file a custody action in Georgia but should do so before the child has been voluntarily gone from the state for more than six months in order to preserve Georgia’s home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).8 The mother may want to file a Petition to Establish Custody or a Petition for Declaration of Custody.

Rights of Surviving Parent

Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the judge, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s best interest and welfare.9 Therefore, in the absence of a court order to the contrary, a surviving mother or father automatically has custody of the child. If the mother dies, a father who has not legitimated the child can file a petition for legitimation to clarify his rights as a surviving parent.10

Legitimation Practice and Procedures

An unwed father must “legitimate” his child in order to get legal rights to the child.11 Legitimation recognizes the biological father as the child’s legal, in addition to biological, father. A father can legitimate by filing a petition for legitimation in superior court. The venue for legitimation is in the mother’s or legal custodian’s county of residence if the mother or legal custodian lives in Georgia.12 If the mother or other party having legal custody or guardianship of the child resides outside this state or cannot, after due diligence, be found within this state, the petition may be filed in the county of the biological father’s residence or the county of the child’s residence. If a petition for the adoption of the child is pending, the biological father shall file the petition for legitimation in the county in which the adoption petition is filed.13

Legitimations must be done by petition in superior court. In some situations a legitimation may also be filed in juvenile court if there is a dependency action pending.14 A father may file for legitimation and also address issues of custody or visitation at the same time. O.C.G.A. § 19-7- 22 (g) states that “A legitimation petition may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child

standard. In a case involving allegations of family violence, the provisions O.C.G.A. § 19-9-3(4)(a) relating to protection of victims of violence shall apply.15 The legitimation can also include a request to change the child’s last name to be the same as that of the father.16

O.C.G.A. § 19-7-22(c) provides that upon the presentation and filing of the petition, the court may pass an order declaring the father’s relationship with the child to be legitimate, and that the father and child shall be capable of inheriting from each other in the same manner as if born in lawful wedlock and specifying the name by which the child shall be known. A petition for legitimation will also involve an adjudication of child support. O.C.G.A. § 19-7-22. A superior court shall, after notice and hearing, enter an order establishing the obligation to support a child as provided under Code Section 19-6-15.17

Repeal of Administrative Legitimation

Previously, between July 2005, and June 2016, a father could also legitimate a child by signing a DHS Paternity and Legitimation form. Former O.C.G.A. § 19-7-21.1. Under that prior law, a mother needed to consent and sign this form as well. If this form was signed by both parents, the child would be legitimated; however, the father would still not have legal or physical custody rights to the child. He would have to get a separate court order for visitation or custody. The prior O.C.G.A. § 19-7-21.1 (e) stated that voluntary acknowledgment of legitimation shall not authorize the father to receive custody or visitation until there is a judicial determination of custody or visitation. However, the administrative legitimation provision has been repealed as of June 2016. See O.C.G.A. § 19-7-21.1.

If a father has already administratively legitimated the child under the prior law but does not have a custody order, he can file a Petition for Custody and/or Visitation. However, some parents are unsure of whether they executed an administrative legitimation and may often not have a copy of anything other than the birth certificate. To be sure that the father’s rights have been addressed it is often best to file a petition for judicial legitimation in conjunction with the claim for custody or visitation.

Delegitimation

A man can be recognized as the “legal” father of a child in the following ways: adoption of the child, O.C.G.A. § 19- 7-22(a)(2)(A); marriage to the mother of the child at the time of conception or birth, O.C.G.A. § 19-7-22(a)(2)(B), see Baker v. Baker, 276 Ga. 778, 582 S.E. 2d 102 (2003); marriage to the mother after the birth of the child and acknowledgment of the child as his, O.C.G.A. § 19-7-22(a)(2)(C); or obtaining a court order in a petition for legitimation, O.C.G.A. § 19-7- 22(a)(2)(D). A putative father is a person who is believed to be the father of a child or alleges to be the father of the child but has not been established as the biological father via paternity testing or acknowledgment of paternity.

A child born during a marriage is generally presumed to be the child of the husband and the husband is therefore officially considered to be the legal father.18 If the child is not actually the biological child of the husband, it is possible for the husband to be a legal father although he is not the biological father. Similarly, if a man has legitimated a child administratively, under the prior law, or via a court proceeding, and the child is not his biological child, he will be the legal father although not the biological father.

If a biological father wants to establish his parental rights against a legal father, he would need to file a petition for legitimation against both the mother and the legal father.19 If successful, such an action would terminate the parental rights of the legal father. However, the biological father will need to show more than a positive paternity test to obtain a legitimation order. Under Davis v. LeBrec, the court will consider (1) whether the biological father has lost his opportunity interest by waiting too long to pursue the issue and (2) whether it is in the best interest of the child to terminate the existing legal relationship and substitute a new one.²⁰

In Davis v. LeBrec, the Court ruled that the biological father was not automatically entitled to legitimate the child and that the decision regarding the termination of legal father’s status should be governed by the best interests of the child standard. The Court ruled that when a biological father is not diligent to avail himself of his opportunity interest, he does not necessarily lose his opportunity interest, but the test as to who will be the legal father will be based on the best interests of the child and not on the biological father’s fitness.22

Previously, the Supreme Court of Georgia, in Brine v. Shipp, held that superior courts did not have subject matter jurisdiction to address the termination of a legal father’s rights and such cases had to be transferred to juvenile court for an adjudication of the termination of the legal father’s parental rights.²² However, in 2013, the Official Code of Georgia was amended, to allow superior courts the jurisdiction to terminate parental rights in actions for divorce and legitimation.23 Under that section, a parental power may be lost by “…[a] superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity, a divorce proceeding, or a custody proceeding pursuant to this chapter or Chapter 5, 8, or 9 of this title, provided that such termination is in the best interest of such child; and provided, further, that this paragraph shall not apply to such termination when a child has been adopted or is conceived by artificial insemination as set forth in Code Section 19-7-21 or when an embryo is adopted as set forth in Article 2 of Chapter 8 of this title.”

Setting Aside Paternity and Terminating Child Support

If a purported father discovers he is not actually the biological father and wants to terminate his legal rights and child support obligation, he can file a Motion to Set Aside Paternity under O.C.G.A. § 19-7-54. In that motion he can ask for termination of an existing child support order. The petitioner will need to show that after the entry of the paternity judgment, newly discovered evidence came to light that caused him to question his paternity of the child and that within the past ninety days, genetic testing has been done and that the results from the genetic testing show that there is a zero percent probability that he is the father of the child for whom child support is required.

All of the following statements must be true concerning the child, the child’s mother and the Defendant/purported Father: a) the Defendant has not adopted the child; b) the child was not conceived by artificial insemination during a marriage between the Defendant and the mother of the child; and c) the Defendant did not act to prevent the biological father of the child from asserting his paternal right with respect to the child.24

Additionally, he cannot have done any of the following acts after acquiring the knowledge that he is not the biological father of the child: a) Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support; b) Acknowledged paternity of the child in a sworn statement; c) Been named as the child’s biological father on her birth certificate with his consent; d) Been required to support the child because of a written voluntary promise; e) Received and disregarded written notice from DHS, any other state agency, or any court directing him to submit to genetic testing; f) Signed a voluntary acknowledgment of paternity as provided in OCGA § 19-7-46.1; or g) Proclaimed himself to be the child’s biological father.25

Child Support Obligation for Non-Biological Children

Note that, under Wright v. Newman, it is legally possible for a non-biological father to be held responsible for child support under the theory of promissory estoppel.26 In Wright, the Court held that the husband was obligated to support his non-biological child under the theory of promissory estoppel. The child had been born prior to the parties’ marriage and prior to their relationship. However, the husband, knowing the child was not his biological child, voluntarily acknowledged paternity and put his name on the child’s birth certificate. He told the wife he wanted to be the child’s father and would support the child. Relying on this, the mother did not pursue a child support action against the child’s biological father. The Court held that husband’s promises had been relied on by the mother to her detriment because she did not pursue an action against the biological father.27

The holding in Wright was distinguished in Garcia v. Garcia, 284 Ga. 152, 663 S.E.2d 709 (2008) where the opposite result occurred. There the Court held that the mother, in that case did not establish that she had relied to her detriment on the promises of her husband to support the child. The mother’s failure to pursue child support from the biological father was not shown to be related to the husband’s promises. As a result, she was not entitled to child support from the non-biological father.

These are some of the many issues which may arise for unmarried parents. It is important to be aware of the potential legal complexities for parents and to consider strategies to provide the best solutions for the families involved.


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Michelle Jordan is the managing attorney of the Atlanta Legal Aid Society’s Family Law Unit. She previously served on the Family Law section’s executive committee and coordinated the statewide Child Support Worksheet Helpline.

Endnotes

1 www.cdc.gov

2 O.C.G.A. § 19-7-25

3 O.C.G.A. § 19-7-25

4 O.C.G.A. § 31-10-9

5 O.C.G.A. § 31-10-9(e)(2)

6 O.C.G.A. § 31-10-14

7 O.C.G.A. § 9-4-2

8 O.C.G.A. §19-9-61

9 O.C.G.A. § 19-9-2

10 O.C.G.A. § 19-7-22

11 O.C.G.A. § 19-7-22

12 O.C.G.A § 19-7-22(b)

13 O.C.G.A § 19-7-22(b)

15 O.C.G.A. § 19-7-22(g)

16 O.C.G.A. § 19-7-22 (c)

18 O.C.G.A. § 19-7-20(a)

19 O.C.G.A. § 19-7-22(c)

20 Davis v. LeBrec, 274 Ga. 5, 549 S.E. 2d 76 (2001), affirming 243 Ga. App. 307, 534 S.E. 2d 84 (2000)

21 Davis v. LeBrec, 274 Ga. 5 (2001)

22 Brine v. Shipp, 291 Ga 376 (2012)

23 O.C.G.A. § 19-7-1 (b) (8)

24 O.C.G.A. § 19-7-54

25 O.C.G.A. § 19-7-54

26 Wright v. Newman, 467 S.E.2d 533, 266 Ga. 519 (1996).

27 Wright at 535.