What is the proper petition to legitimize children, non-contested by either parent?
Full Question:
Answer:
There are two ways to legitimate a child. The first way is for the mother and the reputed father to marry and for the father to then recognize the child as his. The second way is for the father to file a legitimization petition in superior court or, in special circumstances, the juvenile court.
The first step is for the father to file a petition in the county where the mother of the child lives, or if a petition for the adoption of the minor is pending, in the county in which the adoption petition was filed. The mother of the child must be notified of the petition, served with a copy of the petition, and given an opportunity to object.
The father has no absolute right to legitimate a child. The court will consider the best interest of the minor in determining whether the legitimization should be awarded. Sometimes a court will deny a legitimization petition if the court believes that it has been filed to harass or interfere with the life of the mother.
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The following are Georgia statutes:
§ 19-7-22. (For effective date, see note.) Petition for legitimation of child; requirement that mother be named as a party; court order; effect; claims for custody or visitation; third-party action for legitimation in response to petition to establish paternity
(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) (For effective date, see note.) 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 the 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.
HISTORY: Orig. Code 1863, § 1738; Code 1868, § 1778; Code 1873, § 1787; Code 1882, § 1787; Civil Code 1895, § 2494; Civil Code 1910, § 3013; Code 1933, § 74-103; Ga. L. 1985, p. 279, § 2; Ga. L. 1988, p. 1720, § 5; Ga. L. 1989, p. 441, § 1; Ga. L. 1997, p. 1613, § 14; Ga. L. 1997, p. 1681, § 5; Ga. L. 2000, p. 20, § 10; Ga. L. 2005, p. 1491, § 1/SB 53; Ga. L. 2007, p. 554, § 6/HB 369.
§ 19-7-46.1. Name or social security number on birth certificate or other record as evidence of paternity; signed voluntary acknowledgment of paternity
(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.
(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.