How can I get rights to my child and see her?

April 12, 2017

Where an unmarried father considers a child to be his own, visits with her, cares for her and helps raise her financially, emotionally and otherwise, unless he has “legitimated”, the State of Georgia does not legally recognize the relationship as that of legal father and child.  This means that the child could not currently inherit from the father if he died without a will naming her as his beneficiary and the father could not inherit from his child under laws of inheritance and intestacy.  That is, the State of Georgia only recognizes the mother as a child’s legal parent where the father has not legitimated and was never married to the mother.  The mother in this situation is authorized by Georgia law to exercise all parental power over the child.  To gain custody and visitation rights to his child, an unmarried father must file a “Petition for Legitimation” in superior court (although in DFCS-involved cases a father may file it in juvenile court to obtain temporary custody while the mother works her case plan; even then, to obtain any permanent custody/visitation rights he must go to superior court).  The superior court hearing his legitimation action will first determine if the father has “abandoned his opportunity interest” to develop a relationship with his child. If it finds that the father has abandoned his opportunity interest, it could simply deny the petition and end the case.

To establish that he has not abandoned his opportunity interest,  a father can show the court that:

  1. He has been actively involved in his child’s lives since birth;
  2. He has consistently provided financial and other support to his child;
  3. He has maintained contact with his child through visits, child care, phone calls, etc.

Once the superior court makes a determination that a father had not abandoned his opportunity interest, it would then apply one of two tests, depending on the circumstances, “best interests” or “parental fitness”.  A “parental fitness” test provides a legitimating father with greater due process/constitutional protections, because when a superior court looks at “best interests” of the child, it will hear from foster parents, prospective adoptive parents, the stepfather, if any, and others.

Once a father legitimates his child, he stands in the same position as any other legal parent and has a claim to parental and custodial rights in the child.  Where custody of a child has never been ruled on by a court, after a biological father has legitimated his child and seeks custody of the child, the superior court must apply a “best interest of the child” standard under O.C.G.A. §19-9-3 to evaluate the father’s claim for physical and/or legal custody of the child. This is done without a jury, and the superior court judge is to exercise his or her discretion, look to and determine solely what is in the child’s best interest, and what will best promote the child’s happiness and welfare.  Under Georgia’s “best interest” child custody statute, there is no presumption in favor of a certain kind of custody, or of custody in the mother or the father. The superior court can consider and award sole custody, joint legal custody and/or joint physical custody. These different types of custody are explained in another post.