Special Circumstances for Seeking Legitimation

Special Circumstances for Seeking Legitimation


In Georgia, Fathers do not have any legal rights to children that are born out of wedlock.  In contrast, mothers of children born out of wedlock have sole legal and physical custody of the minor children by law, until the Father legitimates the child.

In my practice, I encounter Fathers who seek legitimation for two different reasons. The most routine legitimation case involves a Father who wants to exercise visitation with his minor children and have legal rights to his children. The less routine case involves a Father who is seeking the emergency intervention of the court for cases where the mother is unable to care for the children, and the Father needs to establish his rights so that he can have primary physical custody of the children.

This article briefly discusses the special circumstances in which a father needs to use the legitimation procedures to gain custody of his minor children.

Legitimation and DFCS

If a Mother loses custody of her children due to a DFCS investigation,  the biological father may need to intervene in the case to get custody of the children. In this instance, the agency is conducting an investigation to determine the availability of biological relatives for the children as a placement option, to avoid the children being placed in a foster care setting. In this instance, the father may legitimate the children through Juvenile court, and become a placement option for the children.

The challenge in DFCS cases is when the father is not registered with the Punitive Father Registry or has not signed the birth certificate for the child.  In this instance, the only way that a father will know of a pending Juvenile Court case is if the mother informs them, or his identity is discovered by the DFCS workers or Juvenile court. A legitimation petition may be filed in the juvenile court of the county in which a dependency proceeding regarding the child is pending. O.C.G.A. §§ 15-11-28(e) and 19-7-22

Legitimation and Death of the Mother

If a mother of minor children suffers an untimely death, the biological father will need to petition Probate or Superior Court to intervene to obtain custody of his children.

In cases where the mother is deceased, the Father will have to petition Probate or Superior court for Legitimation on an emergency basis. In addition, there may be a challenge from third party relatives, such as grandparents, adult siblings or guardians, who seek to have custody of the minor children. If there is a pending petition for adoption of the child, the father must file the legitimation petition in the county in which the adoption petition is filed. O.C.G.A. §§ 15-11-28(e) and 19-7-22.

Legitimation and Incarceration

In the unfortunate circumstance when a mother of minor children is incarcerated, the biological father will need the court’s assistance to get custody of his minor children.

Typically, the Father would not be notified by the authorities regarding the mother’s incarceration, and will likely be informed of the situation by the mother’s family members, or the mother’s attorney.

In cases where the Mother is incarcerated, the Father will likely have to serve the Mother while she is incarcerated. Additionally, the mother will have the right to participate in the proceedings, even while in jail. O.C.G.A. § 19-7-22  The mother may contest the legitimation petition by alleging that the petitioner is not the biological father or that he has lost his “opportunity interest to develop a relationship with the child.” Davis v. Labrec, 274 Ga. 5, 549 S.E.2d 76 (2001); In the Interest of M.K., 288 Ga. App. 71 (2007); Binns v. Fairnot, 292 Ga. App. 336 (2008).

Our firm provides representation of Fathers in legitimation matters in Georgia. If you have a legitimation matter, please call my office at 678 466 9846.