What are the rights of unmarried fathers and unmarried mothers?
Unmarried Georgia Fathers have no rights and must legitimate or have their paternity established, and then get a child custody order from the court to gain their rights. There is no other answer, even if you’re on the birth certificate, even if you have a DNA test. If you signed an Acknowledgment of Paternity, you still need to file for custody to have any rights.
From a practical perspective everyone knows who the mother of a child is. It is a difficult thing not to know. It is not so easy, however, to know who the father is. And this creates the legal difficulties.
First thing to know is that if the mother is married the child is presumed to be her husband’s child. Biology does not matter. This can create complications (but that is a whole other thicket, that involves a recent Georgia Supreme Court case that I was trial attorney for, and will discuss in a future blog). Enough to say that the husband is the presumed father of any child the mother has, and that the issue MUST be addressed in any future divorce proceeding by the husband, and it is a material issue to be dealt with in any paternity or legitimation action that may be filed involving the biological father.
There are only two ways that an unmarried father gains legal rights to his child: (1) signing an Acknowledgment of Paternity form at the hospital (or within the first year of the child’s life), or (2) through either a legitimation or paternity lawsuit. Getting DNA testing done will not make you the child’s legal father, and neither will putting your name on the birth certificate. The only thing that will (other than being married to the mother) is one of these two formal processes.
The simplest method in the State of Georgia to become legitimated is to have yourself and the mother execute an Acknowledgment of Paternity form at the hospital where the baby is born.
Here is the form: http://emanuelprobate.com/uploads/PA.pdf. Follow the instructions. When properly executed, within the first year of a child’s life, and filed as indicated, this will legitimate you as the child’s father on a legal basis. But it does not give you any custody rights. You will need to file a separate law suit to obtain those.
The other method is either for dad to file a lawsuit against mom called a “legitimation” lawsuit, or to have mom file a lawsuit against dad called a “paternity” suit. There are subtle differences between the two lawsuits, but all in all, they accomplish the exact same thing, which is to establish who the legal father of a child is.
DNA testing is routinely ordered by the court, and if the DNA comes back positive, that is usually enough evidence. In some cases things are more complicated. Simply being the biological father, under the law, does not entitle you to be the legal father. There are many cases where the parents fight for and against legitimation even in the face of DNA testing. Once legitimated, however, this still does not give you any custody rights.
Georgia dads must demand their child custody rights once they are legitimated or paternity has been established
Having your paternity established in an Acknowledgment of Paternity at the hospital, or recognized in a court order in a legitimation or paternity suit, by itself, STILL GIVES FATHERS NO RIGHTS TO THEIR CHILDREN. Being legitimated, in and of itself, still leaves mom in total charge of the child. In the legitimation or paternity suit, you MUST also demand your custody and visitation rights. And yes, you can win custody of your children, and if not, do better than minimal visitation. You do not have to settle for minimal visitation and paying child support. These issues must be fought for and addressed in any legitimation or paternity suit and be ordered by the court.
If you signed an Acknowledgment of Paternity, then things are no different. You still need to file a lawsuit with the court to obtain custody and visitation rights. Until then, mom remains in total control. All of this is true, in all of these scenarios, even if you lived with and raised the child yourself, even if you did so alone, without mom. Time becomes of the essence in some of these cases.
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.