Took time away from the enormous brief I’m drafting for a different case, and looked into this issue for a matter I have been monitoring.
A friend’s child custody dispute has brought this to my attention, and after hearing different perspectives from attorneys and folks involved in the very common situation of having a child outside of marriage, I wondered more about the forms that a putative father is asked to sign regarding the child born to a woman he is not married to at the hospital. It has long been my own belief that the forms are only a way for Child Support Services to locate the biological father for child support purposes, and the law clarifies this attitude to be (approximately) correct, but only if they are not done right.
The following is the text from Section 19-7-46.1(b) of the Official Code of Georgia:
(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.
That last sentence matters tremendously, because as long as the proper sentence is included in the forms that a hospital offers for paternity determinations by the parents’ agreement at the hospital, there can be a “legal determination of legitimation”. If the necessary “magic words” aren’t included, the situation can become very difficult, very quickly. Look to the last sentence of Section 19-7-22 (subsection (g)(2)), included below, for what is necessary to successfully do more than just leave the father on the hook for support payments.
It is possible to legitimate a child by agreement between the parents (as when they are both present in the hospital for the birth of the child). That is covered by the Code sections referred to above, 19-7-21.1 and 19-7-22. Section 19-7-21.1 describes Voluntary Acknowledgments of Legitimation:
(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.
Section 19-7-22 provides the other, non-negotiated method of achieving legitimation (filing a petition in Court), with subsection (g)(2) offering the magic requirement:
(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 Services, 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 Services 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.