Paternity and Legitimation
A paternity suit is when a mother who is not married to the father of her baby brings a lawsuit to declare who the father of the child is. A legitimation suit is where the father of the child brings a lawsuit against the mother to declare that he is the father of the child. There are some distinctions between these two types of suits due to the historical way these issues were once treated, but for practical purposes these are the same lawsuit these days so I will just refer to it as a paternity suit.
- WHO IS THE LEGAL FATHER?
Any child that is born to a married woman is presumed to be the husband’s child. So if you were married when you got pregnant, or when the baby was born, and you know that the husband is not the father of the child, you need to take steps to have the actual father legitimized as the father. Otherwise your husband will be presumed to be the child’s father.
If you are the husband and think the child is not yours, it may be prudent to have a DNA test done for you and the child (the mother’s DNA is not required for this purpose). If the results come back that the child is not likely yours, then contact an attorney immediately as you will need to take legal steps quickly.
And if you are a father to a child of a mother who is married to someone else, then if you want to gain legal rights as the father you need to take steps to legitimize yourself as the child’s father. If you do not, it will be presumed the husband is the father, and the husband, not you, will have all the rights and responsibilities as the father of the child, which includes equal rights to the child that the mother has. Husband and wife, during the marriage, have exactly equal rights to their children. Neither is superior or inferior under the law. However, that is not true for unmarried men who are not legitimized.
- WHAT RIGHTS DOES A FATHER HAVE IF HE IS NOT MARRIED TO THE MOTHER?
So what rights does a father have to his child if he is not married to the mother? Until the father is legitimized as the father of the child the answer is simple and powerful: ABSOLUTELY NONE. Which means if mom does not want you around the child, you have no legal right to be around the child – PERIOD? You need to go to court and get your rights established as the father. And if you are the mother, the father has no rights to the child, AT ALL, until a court issues an order legitimizing him as the father. This means you can do whatever you want with the child, no matter what the unmarried father thinks about it.
- WHAT FINANCIAL OBLIGATION DOES A FATHER HAVE TOWARDS THE CHILD?
However, just because a father does not have any legal rights to a child until he is legitimated that does not mean he does not have any financial obligations to the child. It is the law in Georgia that a father has the duty to support his child from the date of birth of the child, and can also be made responsible for the birthing and medical expenses prior to the birth of the child. This liability remains no matter how long it takes for the father to be legitimated. An adult child can come back and attempt to sue a father for back support, which gives you some idea that the financial obligation begins at birth and does not end until the child is emancipated.
So does that mean you should start paying child support for your child even before you are legitimated? The answer is complicated, because until you are legitimated you do not actually owe “child support” based upon your gross income. What you owe is your share of the actual expenses that the mother incurs for her child “for the board and support and for all necessaries furnished for the benefit of the parties’ children.” That is pursuant to one statute. Another statute describes this liability as “the joint and several duty of each parent to provide for the maintenance protection, and education of his or her child until the child reaches the age of majority.”
What this distinction means in practice for fathers, is that until you are legitimated your financial liability and responsibility for a child (if you are the child’s father) is limited by the actual expenditures that the mother makes for these expenses. This is usually less than what full child support would be based upon your income. But it can add up to a substantial sum over the years. For mothers, what this means is that you need to retain receipts and records of the expenses that you actually incurred to raise your child so that you have it for evidence in any future paternity suit.
Once a party is legitimized then his child support obligation (if any) will be determined in the same manner as a married person’s child support is set. Please see the articles on child support that are on this web site. If the father gets custody of the child, then the mother will be liable for child support in the same manner that the father would have been liable for child support.
- CUSTODY AND VISITATION – CAN A FATHER WIN CUSTODY?
In a paternity suit child support is not the only issue, the issues of child custody, both physical and legal, and visitation, and attorney’s fees, are also addressed and dealt with. This web-site is full of articles on those topics and those articles will be applicable to your case. However, a few things unique to paternity cases is that quite often a mother will have a substantial advantage on the child custody issue, if she brings the paternity suit while the child is young, or after years have past and the father has not had much contact with the child. She has all legal rights to the child, she can set up a situation where she is clearly the child’s primary caretaker, and in such circumstances it can be very difficult to overcome this advantage for young children, or where years have past with only minimal contact by the father. In such cases, for the father to prevail on custody, he is going to usually have to show that (1) there is something deficient, in comparison to the father’s parenting ability and what the father offers, in the way the mother is raising the child and what the mother can offer the child (all things being equal will not cut it in these circumstances), or (2) there is really a lot of dirt on the mother as it relates to her character and ability to parent.
Fathers however often have very good custody cases if they have been in their child’s life, and have actually provided much of the care for the child. If the mother of your child is allowing you to spend substantial time with the child, THEN IF AT ALL POSSIBLE, spend as much time as possible raising that child. It will be invaluable in a custody case, and puts you back on a much more level playing field with the mother in terms of your custody case. We have won custody for plenty of dads in paternity cases, even with very young children, and we have defended off some very good cases from dads trying to get custody from mom in paternity cases.
We have seen it all, and the MOTHER needs to recognize that although she often goes into a paternity cases with a good advantage, nevertheless, she could lose custody, and she should do nothing to hurt herself in the custody case (i.e., that means, contact an attorney early on to prepare your case, determine the best time to bring your case, discuss how to best collect evidence for your case, and to determine what not to do so as not to “hang yourself” and make your case more difficult). What the FATHER needs to recognize is that he indeed may be able to win custody in a paternity case, and if not outright custody then substantial visitation. The father needs to work harder on his case, and needs to do everything that he can to be with his child as much as possible. Although it is more difficult for fathers in cases like this (because he has no rights to the child except what the mother gives him until he is legitimated and a court order for visitation or custody is made) that he indeed may be able to prevail and win custody of his child (i.e., that means, contacting an attorney early on to best prepare your case, to ascertain the best timing for your case, to determine how to best collect the evidence for your case, and so as not to “hang yourself” and make your case more difficult).
- PROVING PATERNITY.
All this aside, this begs the question of how do you prove your case? First you file the paternity or Legitimation suit against either the alleged father or the mother. Then, Georgia law allows you to require the father and the child to submit to DNA testing. If the mother refuses to cooperate her paternity suit may be dismissed. If the father refuses to submit to DNA testing his refusal to cooperate can be used against him. DNA testing is generally dispositive in deciding the issue of paternity. There is a presumption under Georgia law, absent clear and compelling evidence otherwise, that if you are at least 97% probable of being the child’s father that you are indeed the child’s father. Sometimes DNA testing is not even necessary, as for example a party, after filing a paternity or Legitimation suit can file what is called a Request to Admit. The other party may admit that you are the father or the father may admit he is the father. If so, that removes the need for DNA testing. If not, and if the DNA testing comes back that the alleged father is the father, then the person who refused to admit this fact pays for the DNA testing and any other proof that was required to prove paternity.
Paternity can also be consented to by an Acknowledgement of Legitimation. This involves both father and mother consenting to this on a form that is known as an “Acknowledgment of Legitimation” and this document is filed with the putative father registry. It is important to know that any parent who signs the Acknowledgment of Legitimation has 60 days from the signing of the document (or prior to date of support order, whichever is earlier) to rescind the document. If you do not challenge this document within the 60 day period then you are thereafter only able to challenge it under the grounds of fraud, duress, or material mistake of fact.
A father can also be presumed to be the father of a child based upon the appearance of the name or social security account number of the father, with his written consent on the certificate of birth. This fact establishes prima facie proof that the man who is named on the birth certificate is the father. Therefore, if that is not the case it is the man’s burden to affirmatively prove he is not the father of the child.
- WHAT IF I FIND OUT I AM NOT REALLY THE BIOLOGICAL FATHER?
An issue that also arises in the paternity setting is what happens if you thought you were the dad, but find out later that you are not the dad. There may be a child support order in place, and it may be not fair at all for you to continue to be legally recognized as the father. Fortunately, in such a situation Georgia has enacted a relatively new law that will enable you to take steps to legally remove yourself as the father of a child. It will not allow you reimbursement for back child support, but it will effectively terminate any on-going child support you would otherwise need to pay. If you are in this situation please contact us immediately as you need to take steps in a timely basis to effectuate your rights under this statute.
- WHAT IF I KNOW I AM NOT THE FATHER BUT I PROMISED TO SUPPORT THE CHILD ANYWAYS.
Be careful as to what promises and obligations that you take on. If you know the child is not yours, but you step up and do the noble thing, promise to support the child, and your actions deter the actual father from coming forward the law, using a doctrine called promissory estoppel may hold you to your promise. So do not take on any obligations, and make any such promises that you really don’t intend to follow through on (at least not without first contacting an attorney).
Paternity law is something that most people do not have knowledge of and contacting an attorney is often a very good idea just so that you can understand your rights and liabilities up front. Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.
Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.