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Re-Post (11/1/11)

by merlin on September 1st, 2012
  • Sumo

I did the research for an entry about Georgia’s new HB 87, which is such an invasion into American privacy rights via the “show me your papers” provision that it MUST be decried.  However, somebody else asked about this, and here it is:

 

The parental obligation to a child born out-of-wedlock under Georgia law is defined by O.C.G.A. § 19-7-24, which makes it “[t]he joint and several duty of each parent of a child born out-of-wedlock to provide for the maintenance, protection, and education of the child” (emphasis supplied).  This duty continues until “the child reaches 18 or becomes emancipated” (remember, this can happen because they get married, gain legal emancipation, or join the military), except to the extent that the duty of one parent is otherwise or further defined by court order”.  Essentially, though, what this provides is not power for visitation or custody, but only a financial duty placed on the parents of a child, and – because of the nature of a mother’s necessary ongoing relationship with the child from conception on, as contrasted with the father’s connection – this duty is placed necessarily on the father.  Under §19-7-27, an affirmative duty is placed on a hospital (public or private) when a child is born to do all of the following:

“(1)        Provide the child’s mother and alleged father if he is present at the hospital the opportunity to acknowledge paternity consistent with the requirements of Code Section 19-7-46.1; and

(2)          Provide to the mother and alleged father:

(A)          Written materials about paternity establishment;

(B)          The forms necessary to voluntarily acknowledge paternity;

(C)          A written description of the rights and responsibilities of acknowledging paternity; and

(D)          The opportunity, prior to discharge from the hospital, to speak with staff, either by telephone or in person, who are trained to clarify information and answer questions about paternity acknowledgment.”

What must be understood is that this action – acknowledging paternity at the hospital, only means the father now has the duty to support the child, though he doesn’t have the right to custody or control.  The right to exercise parental power over a child that is born out-of-wedlock is found in §19-7-25, which expressly states that “[o]nly the mother of a child born out-of-wedlock is entitled to custody of the child”.  This rule is subject to the caveat that, if the father “legitimates the child as provided in Code Section 19-7-21.1 or19-7-22” then he has parental power, also.  “Otherwise, the mother may exercise all parental power over the child.”

HOWEVER…OCGA §19-7-21talks about acknowledgments of paternity, and sets the record straight.  That Code Section provides not only a definition for the act of acknowledging paternity (as is done at the hospital when a baby is born and the father, not married to the mother, signs the birth certificate and gives the child his last name, anyway.  This is sometimes done in contemplation of marriage at a later time, but the law does not turn on it.

OCGA §19-7-21reads as follows:

“(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 Section19-7-22; 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 Section19-7-22shall 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 Section16-10-20.(g) Where a voluntary acknowledgment of paternity is timely rescinded and includes a voluntary acknowledgment of legitimation, the legitimation shall also be deemed rescinded.”

 

What I find to be most interesting about this Code Section is subsection (e), which implies that there CAN be a judicial determination of custody or visitation at a hearing based around the execution of an acknowledgment at the hospital, as long as none of the circumstances described in subsection (c) exist!

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