Do I Need Father's Consent to Change Child's Name if Father is Named on the Birth Certificate?
Full Question:
Answer:
If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child, or the written consent of the child's guardian if both parents are dead or have abandoned the child, shall be filed with the petition, except that the written consent of a parent shall not be required if the parent has not contributed to the support of the child for a continuous period of five years or more immediately preceding the filing of the petition.
Under Georgia law, for an unwed father to get any parental rights, he must file a legitimation action in court, or the father and mother can sign a voluntary acknowledgment of legitimation. A legitimation action legally recognizes that a man is the father of the child and gives the child the right to inherit from the father. As part of a legitimation action, the unwed father can ask for custody or visitation. The father is allowed to file for legitimation in court.
Just because a father's name is listed on the birth certificate does not give the father any legal rights to custody or visitation under Georgia law. To have full parental rights in Georgia, an unwed father must legitimate the child either in a court action or by signing the legitimation acknowledgement.
Please see the following GA statutes:
In whom parental power over child born out of wedlock lies.
Only the mother of a child born out of wedlock is entitled to his custody, unless the father legitimates him as provided in Code Section 19-7-22. Otherwise, the mother may exercise all parental power over the child.
Title 19, §19-7-25
19-7-22. (a) A father of a child born out of wedlock may render his....
(a) A father of a child born out of wedlock may render his relationship
with the child legitimate by petitioning the superior court of the county
of the residence of the child's mother or other party having legal
custody or guardianship of the child; provided, however, that if the
mother or other party having legal custody or guardianship of the child
resides outside the state or cannot, after due diligence, be found within
the state, the petition may be filed in the county of the father's
residence or the county of the child's residence. If a petition for the
adoption of the child is pending, the father shall file the petition for
legitimation in the county in which the adoption petition is filed.
(b) The petition shall set forth the name, age, and sex of the child,
the name of the mother, and, if the father desires the name of the
child to be changed, the new name. If the mother is alive, she shall
be named as a party and shall be served and provided an opportunity to
be heard as in other civil actions under Chapter 11 of Title 9, the
"Georgia Civil Practice Act."
(c) 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.
(d) A legitimation petition may be filed, pursuant to paragraph (2) of
subsection (e) of Code Section 15-11-28, in the juvenile court of the
county in which a deprivation proceeding regarding the child is pending.
(e) Except as provided by subsection (f) of this Code section, the
court shall upon notice to the mother further establish such duty as
the father may have to support the child, considering the facts and
circumstances of the mother's obligation of support and the needs of
the child as provided under Code Section 19-6-15.
(f) After a petition for legitimation is granted, if a demand for a
jury trial as to support has been properly filed by either parent,
then the case shall be transferred from juvenile court to superior
court for such jury trial.
(f.1) The petition for legitimation 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 of paragraph (4) of subsection (a) of Code Section 19-9-3 shall
also apply.
(g)(1) In any petition to establish paternity pursuant to paragraph (4)
of subsection (a) of Code Section 19-7-43, the alleged father's response
may assert a third-party action for the legitimation of the child born
out of wedlock. Upon the determination of paternity or if a voluntary
acknowledgment of paternity has been made and has not been rescinded
pursuant to Code Section 19-7-46.1, the court or trier of fact as a matter
of law and pursuant to the provisions of Code Section 19-7-51 may enter
an order or decree legitimating a child born out of wedlock, provided
that such is in the best interest of the child. Whenever a petition to
establish the paternity of a child is brought by the Department of Human
Resources, issues of name change, visitation, and custody shall not be
determined by the court until such time as 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; if the petition is brought by a
party other than the Department of Human Resources or if the alleged
father seeks legitimation, the court may determine issues of name
change, visitation, and custody in accordance with subsections (b) and
(f.1) of this Code section. Custody of (he child shall remain in the
mother unless or until a court order is entered addressing the issue of
custody.
(2) In any voluntary acknowledgment of paternity which has been made
and has not been rescinded pursuant to Code Section 19-7-46.1, when
both the mother and father freely agree and consent, the child may be
legitimated by the inclusion of a statement indicating a voluntary
acknowledgment of legitimation.
19-7-46.1. (a) The appearance of the name or social security account
number of....
(a) The appearance of the name or social security account number of the
father, entered with his written consent, on the certificate of birth or
a certified copy of such certificate or records on which the name of the
alleged father was entered with his written consent from the vital
records department of another state or the registration of the father,
entered with his written consent, in the putative father registry of this
state, pursuant to subsection (d) of Code Section 19-11-9, shall
constitute a prima-facie case of establishment of paternity and the
burden of proof shall shift to the putative father to rebut such in a
proceeding for the determination of paternity.
(b) When both the mother and father have signed a voluntary
acknowledgment of paternity and the acknowledgment is recorded in the
putative father registry established by subsection (d) of Code Section
19-11-9, the acknowledgment shall constitute a legal determination of
paternity, subject to the right of any signatory to rescind the
acknowledgment prior to the date of the support order, any other order
adjudicating paternity, or 60 days from the signing of the agreement,
whichever is earlier. Recording such information in the putative father
registry shall constitute a legal determination of paternity for purposes
of establishing a future order for support, visitation privileges, and
other matters under Code Section 19-7-51. Acknowledgment of paternity
shall not constitute a legal determination of legitimation pursuant to
Code Section 19-7-21.1 or 19-7-22.
(c) After the 60 day rescission period specified in subsection (b) of
this Code section, the signed voluntary acknowledgment of paternity
may be challenged in court only on the basis of fraud, duress, or
material mistake of fact, with the burden of proof on the person
challenging the acknowledgment. The legal responsibilities of any
signatory, including child support obligations, arising from the
acknowledgment may not be suspended during the challenge, except for
good cause shown.
19-7-21.1. (a) As used in this Code section, the term:
(a) As used in this Code section, the term:
(1) "Acknowledgment of legitimation" means a written statement
contained in a voluntary acknowledgment of paternity form indicating
that a mother and father of a child born out of wedlock have freely
agreed and consented that the child may be legitimated.
(2) "Legal father" means a male who:
(A) Has legally adopted a child;
(B) Was married to the biological mother of that child at the time the
child was conceived or was born, unless such paternity was disproved
by a final order pursuant to Article 3 of this chapter;
(C) Married the legal mother of the child after the child was born and
recognized the child as his own, unless such paternity was disproved
by a final order pursuant to Article 3 of this chapter;
(D) Has been determined to be the father by a final paternity order
pursuant to Article 3 of this chapter;
(E) Has legitimated the child by a final order pursuant to Code Section
19-7-22; or
(F) Has legitimated a child pursuant to this Code section and who has
not surrendered or had terminated his rights to the child.
(b) Prior to the child's first birthday, a father of a child born out
of wedlock may render his relationship with the child legitimate when
both the mother and father have freely agreed, consented, and signed a
voluntary acknowledgment of paternity and an acknowledgment of
legitimation which have been made and have not been rescinded pursuant to
Code Section 19-7-46.1. The State Office of Vital Records shall provide
notice, in writing, of the alternatives to, legal consequences of, and
the rights and responsibilities of signing a voluntary acknowledgment of
legitimation.
(c) Voluntary acknowledgment of legitimation shall not be recognized
if:
(1) The mother was married to another man when the child was born;
(2) The mother was married to another man at any time within the usual
period of gestation;
(3) There is another legal father;
(4) The mother has voluntarily and in writing surrendered all of her
parental rights pursuant to the provisions of subsection (a) of any of
Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 and has not withdrawn her
surrender as permitted by the provisions of subsection (b) of Code
Section 19-8-9 or the mother's parental rights have been judicially
terminated by a court of competent jurisdiction or an action to terminate
such rights has been initiated and is pending;
(5) The mother has signed a voluntary acknowledgment of legitimation
with another man; or
(6) The child is one year of age or older.
(d) If any of the circumstances described in subsection (c) of this
Code section exists, the provisions of Code Section 19-7-22 shall be
the only method of legitimation.
(e) Voluntary acknowledgment of legitimation shall not authorize the
father to receive custody or visitation until there is a judicial
determination of custody or visitation.
(f) It shall be unlawful to make a false statement on a voluntary
acknowledgment of legitimation, and the making of a false statement
shall be punishable as an act of false statements and writings under
Code Section 16-10-20.
(g) Where a voluntary acknowledgment of paternity is timely rescinded
and includes a voluntary acknowledgment of legitimation, the legitimation
shall also be deemed rescinded.
