Law favors legitimation.

- Law favors marriage, and likewise the legitimizing of children, when it can be done with safety to society. Harrison v. Odum, 148 Ga. 489, 96 S.E. 1038 (1918).

Presumption of legitimacy arises only when child is born in wedlock. Mincey v. Mincey, 233 Ga. 512, 212 S.E.2d 345 (1975).

When child may avail itself of presumption.

- Absent evidence that mother was ever married, child cannot avail itself of benefit of presumption. Mincey v. Mincey, 233 Ga. 512, 212 S.E.2d 345 (1975).

Statute presumed child born within wedlock to be legitimate. Mims v. State, 43 Ga. App. 100, 157 S.E. 901 (1931); Ellis v. Woods, 214 Ga. 105, 103 S.E.2d 297 (1958); Boone v. Boone, 225 Ga. 610, 170 S.E.2d 414 (1969); B-B v. Califano, 476 F. Supp. 970 (M.D. Ga. 1979), aff 'd sub. nom. B.B. ex rel. A.L.B. v. Schweiker, 643 F.2d 1069 (5th Cir. 1981).

Child born in wedlock is presumed to be child of husband. Mims v. State, 43 Ga. App. 100, 157 S.E. 901 (1931); Ellis v. Woods, 214 Ga. 105, 103 S.E.2d 297 (1958); Boone v. Boone, 225 Ga. 610, 170 S.E.2d 414 (1969).

Presumption of legitimacy is one of the strongest and most persuasive known to the law, and to overcome such presumption proof should be clear to establish contrary where possibility of access between husband and wife exists. Stephens v. State, 80 Ga. App. 823, 57 S.E.2d 493 (1950).

Presumption is rebuttable.

- Presumption that child born in wedlock is legitimate is rebuttable. McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967); B-B v. Califano, 476 F. Supp. 970 (M.D. Ga. 1979), aff'd sub nom. B-B v. Schweiker, 643 F.2d 1069 (5th Cir. 1981); Parks v. State, 155 Ga. App. 44, 270 S.E.2d 271 (1980); Families First v. Gooden, 211 Ga. App. 272, 439 S.E.2d 34 (1993).

When presumption may be rebutted.

- In civil action, or on criminal prosecution, by evidence of nonaccess, or other testimony, presumption of legitimacy of offspring may be rebutted. Thornton v. State, 129 Ga. App. 574, 200 S.E.2d 298 (1973).

Presumption not rebutted.

- Mother failed to rebut the presumption of legitimacy raised by a child's birth during the marriage pursuant to O.C.G.A. §§ 19-7-20 and19-8-1(6) since the mother and husband knew that another man was the biological father of the child, the husband was listed with the mother's consent on the child's birth certificate as the child's father and had always provided financial and emotional support for the child, and when, if the husband had attempted to rebut the presumption of legitimacy the husband would have still been required to make child support payments. Baker v. Baker, 276 Ga. 778, 582 S.E.2d 102 (2003).

In IVF, paternity proved under O.C.G.A. § 19-7-20. - O.C.G.A. § 19-7-21, which created an irrebuttable presumption of legitimacy for children born within wedlock or within the usual period of gestation thereafter who were conceived by artificial insemination, did not apply to a child conceived by in-vitro fertilization (IVF). The mother could attempt to prove paternity by some other means, such as under O.C.G.A. § 19-7-20. Patton v. Vanterpool, 302 Ga. 253, 806 S.E.2d 493 (2017).

No absolute right to validate child.

- Because the juvenile court failed to determine if one parent abandoned their opportunity interest to develop a relationship with the subject child, and failed to conduct a test of that parent's fitness or make a determination based upon the best interests of the child, the court's speculative conclusions were not equivalent to an examination of the benefit that might flow to the child if legitimated. Thus, the court, in essence, interpreted the parent's right to legitimate the child as absolute, without qualification, which was erroneous, requiring reversal. In the Interest of M.K., 288 Ga. App. 71, 653 S.E.2d 354 (2007).

Standard of proof needed to overcome presumption.

- Presumption of legitimacy of children born in wedlock can be overcome by clear and convincing proof, the common-law doctrine not being of force in Georgia. Harris v. Shelton, 151 Ga. 615, 107 S.E. 842 (1921).

Whether presumption has been rebutted is for jury determination.

- It is duty of jury to weigh evidence against presumption and to decide, as in exercise of the jury's judgment, the truth as it may appear. Parks v. State, 155 Ga. App. 44, 270 S.E.2d 271 (1980).

Effect of rebuttal of presumption.

- When there was uncontradicted testimony of the child's mother that she had lived apart from and not even seen her former husband for more than two years preceding conception of the child, the presumption of legitimacy did not apply, and the trial court's refusal of the putative father's request to give a charge on this principle was not error. Rainwater v. State, 210 Ga. App. 594, 436 S.E.2d 772 (1993).

Legitimated child may inherit from father's estate. Morris v. Dilbeck, 71 Ga. App. 470, 31 S.E.2d 93 (1944).

"Children," as a general rule, means legitimate children. Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1895).

Husband of woman at time of conception or birth is party at interest when another man claims fatherhood of the child in a legitimation proceeding; therefore, due process requires that the "legal father" must be served, but that service may be perfected in the same manner as provided for in adoption proceedings. In re White, 254 Ga. 678, 333 S.E.2d 588 (1985).

Initial burden of proving legitimacy.

- Evidence of the presumption of legitimacy arising from the birth of a child requires the production of contrary evidence from the husband, but it does not relieve the wife of her burden of proof to establish legitimacy in the first place. Miller v. Miller, 258 Ga. 168, 366 S.E.2d 682 (1988).

Virtual adoption.

- Trial court erred by granting a biological son's motion for partial summary judgment on the issue of virtual adoption asserted by the purported adopted daughter because the court clearly erred by misinterpreting the requirement of partial performance of the agreement to adopt and erroneously concluded that an established virtual adoption can be undone by showing that the purported adopted daughter formed a relationship with their natural father after learning of his existence when a teenager. Sanders v. Riley, 296 Ga. 693, 770 S.E.2d 570 (2015).

Cited in Harrison v. Odum, 148 Ga. 489, 96 S.E. 1038 (1918); Wheeler v. Howard, 211 Ga. 596, 87 S.E.2d 377 (1955); Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955); Miller v. Miller, 96 Ga. App. 469, 100 S.E.2d 594 (1957); Peters v. State, 98 Ga. App. 340, 106 S.E.2d 77 (1958); King v. King, 218 Ga. 534, 129 S.E.2d 147 (1962); Smith v. Smith, 224 Ga. 442, 162 S.E.2d 379 (1968); Clark v. Buttry, 121 Ga. App. 492, 174 S.E.2d 356 (1970); Dobyns v. Prudential Ins. Co. of Am., 227 Ga. 253, 179 S.E. 915 (1971); In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Aikens v. Turner, 241 Ga. 401, 245 S.E.2d 660 (1978); Ingram v. Pirkle, 150 Ga. App. 337, 258 S.E.2d 25 (1979); McMahan v. Koppers Co., 654 F.2d 380 (5th Cir. 1981); Glover v. Clark, 161 Ga. App. 552, 288 S.E.2d 887 (1982); In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457 (1982); Department of Human Resources v. Brinson, 171 Ga. App. 905, 321 S.E.2d 763 (1984); Jackson v. Jackson, 253 Ga. 576, 322 S.E.2d 725 (1984); Wilkins v. Department of Human Resources, 174 Ga. App. 105, 329 S.E.2d 266 (1985); Wilkins v. Georgia Dep't of Human Resources, 255 Ga. 230, 337 S.E.2d 20 (1985); J.C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 380 S.E.2d 282 (1989); Jones v. Sullivan, 953 F.2d 1291 (11th Cir. 1992); Hall v. Coleman, 242 Ga. App. 576, 530 S.E.2d 485 (2000).

Witness cannot testify that husband denied paternity.

- Testimony that husband, in life, at time of delivery of testimony, said to witnesses that child born during marriage is not his is insufficient to overcome presumption that all children born in wedlock, whether begotten before or after marriage or within usual period of gestation thereafter, are legitimate, and presumptively the children of the husband; such declarations of the husband in life at time witnesses testified are not admissible evidence to show child is illegitimate or to bastardize the child. Richards v. State, 55 Ga. App. 184, 189 S.E. 682 (1937).

When plea of not guilty raises issue of legitimacy.

- Husband, by plea of not guilty in criminal case of abandonment of his minor child, or of bastardy, may put legitimacy of child in issue, and method of proving illegitimacy must be in accordance with rules of law. Richards v. State, 55 Ga. App. 184, 189 S.E. 682 (1937).

Issue of legitimacy is appropriate in divorce proceeding. McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967).

Marriage of parents and father's recognition of child legitimates child.

- Child born out of wedlock is made legitimate by subsequent valid marriage of child's parents, and recognition of child by father as his own. Morris v. Dilbeck, 71 Ga. App. 470, 31 S.E.2d 93 (1944).

Order requiring genetic testing erroneous following marriage and recognition of child.

- In an action wherein a juvenile court approved the state's plan for nonreunification of two twin children, the juvenile court erred by ordering a parent to submit to genetic testing and by holding that the parent lacked standing in any future related proceedings until that parent submitted to such testing as the parent had married the children's other parent and recognized the children as the parent's own. Further, the Department of Family and Children services failed to fully comply with O.C.G.A. § 19-7-43(d) by not supporting the motion with a sworn statement either alleging or denying the parent's paternity. In the Interest of T.W., 288 Ga. App. 386, 654 S.E.2d 218 (2007).

Illegitimate child may be legitimated by marriage of mother and reputed father and recognition of such child as his. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

Legitimation by marriage dates from birth.

- Former Code 1933, §§ 74-101 and 74-201 (see now O.C.G.A. §§ 19-7-20 and19-7-23) made child whose parents marry after the child's birth legitimate for all purposes from date of birth. Morris v. Dilbeck, 71 Ga. App. 470, 31 S.E.2d 93 (1944).

Legitimation of issue of bigamous marriage by cohabitation and recognition after death of first wife. See Smith v. Reed, 145 Ga. 724, 89 S.E. 815, 1917a L.R.A. 492 (1916).

Opportunity of access raises strong presumption in favor of legitimacy.

- When husband and wife have had opportunity of sexual intercourse, a very strong presumption arises that it must have taken place, and that child in question is the fruit; but it is only a very strong presumption, and no more. This presumption may be rebutted by evidence showing, inter alia, the habits of life and relative situations of the parties, their conduct and declarations connected with conduct, such as, for example, in birth certificates, or impossibility of access. Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 152 S.E.2d 815 (1966).

Husband not biological father.

- Former husband was improperly awarded the former wife's biological child, who was born before the parties' marriage; the husband's marriage to the wife after the child was born and acknowledgement of the child did not render the child legitimate under O.C.G.A. § 19-7-20(c), as § 19-7-20(c), which applied to reputed fathers, was inapplicable as the parties always acknowledged that the husband was not the biological father of the child. Veal v. Veal, 281 Ga. 128, 636 S.E.2d 527 (2006).

When sexual intercourse is proved, nothing short of impossibility should impugn legitimacy of offspring. Simeonides v. Zervis, 120 Ga. App. 883, 172 S.E.2d 649 (1969), aff'd, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

Once sexual intercourse between husband and wife is proved, nothing short of impossibility will rebut presumption of legitimacy of child born to wife. Herrin v. Herrin, 242 Ga. 256, 248 S.E.2d 651 (1978).

When sexual intercourse is presumed from propinquity of parties, slighter proof is required to rebut presumption. Simeonides v. Zervis, 120 Ga. App. 883, 172 S.E.2d 649 (1969), aff'd, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

That four children previously were born of marriage shows only presumption of sexual intercourse between parties. Simeonides v. Zervis, 120 Ga. App. 883, 172 S.E.2d 649 (1968), aff'd, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

Responsibility for illegitimate child placed upon parent who is present. This placing of full parental power in mother is consistent with public policy favoring marriage and family because father can choose to join the family. Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246 (1977), aff'd, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).

Intervention in legitimation proceeding.

- Trial court erred in granting a putative biological father's legitimation petition while a husband's timely, meritorious motion to intervene of right under O.C.G.A. § 9-11-24(a) was pending because when the husband moved to intervene in the legitimation proceeding he was the child's legal father and had parental and custodial rights to the child, and the husband clearly had an interest in the legitimation proceeding; the husband's interest as the child's legal father would be impaired by a decision of the trial court that was unfavorable to him, and his interest was not adequately represented by the parties to the action since the child's mother consented to the legitimation action. Baker v. Lankford, 306 Ga. App. 327, 702 S.E.2d 666 (2010).

Denial of legitimation petition proper.

- Trial court properly denied the father's petition to legitimate a child since the father abandoned the father's interest when the father took no action during the wife's pregnancy or birth and did not seek to legitimate the child until more than five years after receiving the DNA results. Matthews v. Dukes, 314 Ga. App. 782, 726 S.E.2d 95 (2012), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 729 S.E.2d 393 (2012).

Am. Jur. 2d.

- 41 Am. Jur. 2d, Illegitimate Children, §§ 1 et seq., 14, 17, 68, 119.

C.J.S.

- 14 C.J.S., Children Out-of-Wedlock, §§ 1, 13, 16 et seq.

ALR.

- Attempt to bastardize child as affecting right to custody of the child, 4 A.L.R. 1119; 37 A.L.R. 531.

Presumption of legitimacy of child born to married woman as affected by lapse of more than normal period of gestation after access by husband, 7 A.L.R. 329.

Right of child legitimated by marriage of parents to take by inheritance from kindred of parents, 64 A.L.R. 1124.

What constitutes a "marriage" within meaning of a statute legitimating issue of all marriages null in law, 84 A.L.R. 499.

Degree of proof necessary to overcome presumption of legitimacy, 128 A.L.R. 713.

Status of child born to inmate of public institution, 159 A.L.R. 1229.

Legitimating effect of intermarriage of parents as affected by father's failure to acknowledge paternity, 175 A.L.R. 375.

Admissibility, on issue of child's legitimacy or parentage, of declarations of parents, relatives, or the child, deceased or unavailable, 31 A.L.R.2d 989.

Presumption of legitimacy, or of paternity, of child conceived or born before marriage, 57 A.L.R.2d 729.

Who qualifies as "child" within survivor benefit provisions of Federal Social Security Act, § 216(h)(2) [42 U.S.C. § 416(h)(2)], 60 A.L.R.2d 1070.

Determination of paternity, legitimacy, or legitimation in action for divorce, separation, or annulment, 65 A.L.R.2d 1381.

Race or color of child as admissible in evidence on issue of legitimacy or paternity, or as basis of rebuttal or exception to presumption of legitimacy, 32 A.L.R.3d 1303.

Presumption of legitimacy of child born after annulment, divorce, or separation, 46 A.L.R.3d 158.

Rule as regards competency of husband or wife to testify as to nonaccess, 49 A.L.R.3d 212.

Death of putative father as precluding action for determination of paternity or for child support, 58 A.L.R.3d 188.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support of custody order made incidental thereto, 78 A.L.R.3d 846.

Legitimation by marriage to natural father of child born during mother's marriage to another, 80 A.L.R.3d 219.

Proof of husband's impotency or sterility as rebutting presumption of legitimacy, 84 A.L.R.3d 495.

Who may dispute presumption of legitimacy of child conceived or born during wedlock, 90 A.L.R.3d 1032.

Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R.5th 697.