O.C.G.A. § 19-7-22 (2019)

Annotations

Cross references. Effect of legitimation on vital records, §§ 31-10-12, 31-10-14. Code Commission notes. Pursuant to Code Section 28-9-5, in 1997, subsection (b), as enacted by Ga. L. 1997, p. 1613, § 14, was redesignated as subsection (g) (now subsection (h)). Pursuant to Code Section 28-9-5, in 2016, a portion of the amendment of paragraph (c)(1) (now paragraph (d)(1)) of this Code section by Ga. L. 2016, p. 219, § 2/SB 331, was treated as impliedly repealed and superseded by Ga. L. 2016, p. 304, § 3/SB 64, due to irreconcilable conflict. Editor’s notes. Ga. L 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides: “The General Assembly of Georgia declares that it is the policy of this state to

assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship.” Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008. Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: “This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions.” Ga. L. 2016, p. 304, § 18/SB 64, not codified by the General Assembly, provides: “This Act shall not be construed to

affect a voluntary acknowledgment of legitimation that was valid under the former provisions of Code Section 19-7-21.1, nor any of the rights or responsibilities flowing therefrom, if it was executed on or before June 30, 2016.” Law reviews. For note discussing the admissibility of husband and wife’s testimony concerning nonaccess in determining the legitimacy of a child, see 6 Ga. St. B.J. 448 (1970). For comment on statutes requiring consent of mother, but not of father, as prerequisite to adoption of illegitimate child, violating the fourteenth amendment equal protection clause, see 29 Emory L.J. 833 (1981). For note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 171 (1981). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For case comment, “In re Baby Girl Eason: Balancing Three Competing Interests in Third Party Adoptions,” see 22 Ga. L. Rev. 1217 (1988). For comment, “The Constitutional Rights of Unwed Fathers in Georgia: In re Baby Girl Eason,” see 5 Ga. St. U.L. Rev. 591 (1989). For note on 1989 amendment to this

Code section, see 6 Ga. St. U.L. Rev. 234 (1989). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 121 (1997). For survey article on domestic relations cases for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 223 (2003). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For annual survey of domestic relations law, see 67 Mercer L. Rev. 47 (2015). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 127 (2016). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For article with annual survey on domestic relations, see 73 Mercer L. Rev. 89 (2021).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PROCEDURAL ISSUES APPLICATION General Consideration Constitutionality. - O.C.G.A. § 197-22 does not violate constitutional guarantees of due process and equal protection. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750, 1991 Ga. LEXIS 396 (1991). Rights afforded a mother in the scheme for legitimating the mother’s child render the mother a defendant within the meaning of Ga. Const. 1983, Art. VI, Sec. II, Para. VI; thus, that portion of O.C.G.A. § 19-7-22(a) that provides for venue in

the county of the putative father, when different from the county of the mother, offends the Georgia Constitution. If one portion of a statute is unconstitutional, the Supreme Court of Georgia has the power to sever that portion of the statute and preserve the remainder if the remaining portion of the act accomplishes the purpose the Georgia General Assembly intended; accordingly, severance of this venue provision does not affect the purpose of the remainder of the statute, and the remaining provisions of O.C.G.A.

§ 19-7-22(a) are to be given full effect. Holmes v. Traweek, 276 Ga. 296, 577 S.E.2d 777, 2003 Ga. LEXIS 248 (2003). Application of amended statute. - As there were no vested substantive rights that would have been impaired by application of the current version of O.C.G.A. § 19-7-22(b) to an appeal by a putative father, although the prior version was in effect at the time of the juvenile court’s ruling, the current version was used for appellate review of the issues raised. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587, 2006 Ga. App. LEXIS 444 (2006), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Effect of legitimation order. - Because the juvenile court erred in the court’s application of O.C.G.A. § 19-71(b.1), as a child’s legal father was not one of the limited number of related third parties who could seek custody from a legal parent, and in light of the superior court’s grant of a legitimation petition to the child’s biological father, which the legal father did not challenge by way of an appeal, the legal father lacked standing to challenge the biological father’s custody under present Georgia law, and therefore no longer had rights to the custody of the child. In the Interest of C.L., 284 Ga. App. 674, 644 S.E.2d 530, 2007 Ga. App. LEXIS 388 (2007). No absolute right to legitimate 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 Ga. App. LEXIS 1136 (2007). Construction of section. - Being in derogation of common law, statute must

be strictly construed. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). Construction with § 15-11-96. - Because a father failed to give written notice to the juvenile court that a legitimation petition was filed, as required by O.C.G.A. § 15-11-96(h), within 30 days of receiving notification of a termination proceeding, the juvenile court properly entered an order terminating the father’s parental rights, and the father was thus denied the right to object. In the Interest of S.M.R., 286 Ga. App. 139, 648 S.E.2d 697, 2007 Ga. App. LEXIS 704 (2007). Construction with O.C.G.A. § 19-961. - O.C.G.A. § 19-7-22(f.1) effected a change in the prior rule of standing under which a putative father could not assert custody claims in a legitimation proceeding but did not create an exception to jurisdictional rules that apply in interstate custody cases under O.C.G.A. § 199-61 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq. Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425, 2015 Ga. App. LEXIS 295 (2015). Jurisdiction over legitimation petition and for placement. - Contrary to a mother’s contention, the custody order showed on the order’s face such facts as were necessary to give the juvenile court jurisdiction of the person and subject matter because the order referenced and incorporated the legitimation order entered days earlier, reflected on the order’s face that all parties were served with a copy of the pleadings and were present, along with their counsel, and the mother did not contest the juvenile court’s personal jurisdiction. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66, 2015 Ga. App. LEXIS 278 (2015). There is no statutory provision for inheritance by illegitimates, per se, from their fathers. Savage v. Blanks, 117 Ga. App. 316, 160 S.E.2d 461, 1968 Ga. App. LEXIS 1075 (1968). Section provides exclusive procedure for legitimizing children. - Exclusive procedure by which fathers may render children legitimate was set forth in the statute. Savage v. Blanks, 117 Ga. App. 316, 160 S.E.2d 461, 1968 Ga. App. LEXIS 1075 (1968).

General Consideration (Cont’d) Only a father can by voluntary unilateral action make an illegitimate child legitimate. Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269, 1979 U.S. LEXIS 90 (1979). Right is with father only. - Clear language of statute showed legislative intent to be that father alone has right to legitimate a child, whether father was married or single. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). It was not intent of legislature that legitimation proceedings be only available to unmarried fathers. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). Qualification on father’s right to legitimate child. - Under statute, father’s right to legitimate was absolute, subject only to qualification that natural mother may object and if she showed valid reasons why petition should not be granted, judge may deny the petition. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). Mother’s rights. - Mother of illegitimate child is entitled to file objections to a petition brought by putative father to legitimate such child. Murphy v. Thomas, 89 Ga. App. 687, 81 S.E.2d 26, 1954 Ga. App. LEXIS 549 (1954). Complaint for legitimation under O.C.G.A. § 19-7-22 cannot be maintained by the mother. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750, 1991 Ga. LEXIS 396 (1991). Putative father who filed a legitimation petition pursuant to O.C.G.A. § 17-9-22 had to serve the mother with the petition in a timely manner, pursuant to the service requirements under § 17-9-22(b), as the juvenile court which was ruling on a county agency’s petition to terminate parental rights over the child had only orally and provisionally terminated the mother’s rights at the time that the putative father’s petition for legitimation was filed and, accordingly, the mother was entitled to service. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587, 2006 Ga. App. LEXIS 444 (2006), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App.

314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Juvenile court properly granted a father’s petition to legitimate the child, then ten months old, and granted placement to the father because the evidence established that the father did not abandon the child and had cared for and remained in contact as did the paternal grandmother, the court applied the parental fitness test, and once the court determined that the father had not abandoned his opportunity interest, the court was not required to apply the best interest of the child standard. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66, 2015 Ga. App. LEXIS 278 (2015). Children born through adulterous relationships. - Statute did not deny legitimization to children born through adulterous relationships. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). If a father wants to gain the right to custody or visitation, he must take the steps required by O.C.G.A. § 19-7-22 to “legitimate the child,” or, more correctly, to legitimate the relationship between himself and the child. Pruitt v. Lindsey, 261 Ga. 540, 407 S.E.2d 750, 1991 Ga. LEXIS 396 (1991). Father of illegitimate child, legitimated by court order has claim to parental and custodial rights with respect to his child. Mitchell v. Ward, 231 Ga. 671, 203 S.E.2d 484, 1974 Ga. LEXIS 1181 (1974). Because an alleged legal father failed to provide the juvenile court with sufficient evidence that the father legitimated the child at issue, the father lacked standing to contest both the custody of the child and the court’s order granting custody to DFCS; thus, the custody order was vacated and the case was remanded for further proceedings in which the father could legitimate the child, and if that occurred the court should enter a further order addressing the father’s request for custody. In the Interest of A.D., 286 Ga. App. 352, 648 S.E.2d 786, 2007 Ga. App. LEXIS 774 (2007). Legitimation does not immunize father against loss of custody. - Fact that children have been legitimated does

not ipso facto immunize their father from proper showing that children should be removed from his custody. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80, 1971 Ga. LEXIS 543 (1971). Scope of rights conferred upon legitimated child. - Legitimation under statute did not render illegitimate child legitimate according to full significance of that term, but only renders him so far legitimate as will enable him to inherit from his father. Hicks v. Smith, 94 Ga. 809, 22 S.E. 153, 1894 Ga. LEXIS 354 (1894). Statute did not have effect of rendering legitimate an illegitimate child according to full significance of that term, but only to legitimate so as to enable child to inherit from father, to enjoy his name and like amenities. The authorized right to inherit does not extend to his father’s wife who is not his mother nor to his half brothers and sisters. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). Legitimation of illegitimate child gives the child no more right to support, and no more right than he already had not to be discriminated against because of his birth. Mabry v. Tadlock, 157 Ga. App. 257, 277 S.E.2d 688, 1981 Ga. App. LEXIS 1767 (1981). Visitation rights not at issue upon petition to legitimate. - O.C.G.A. § 19-7-22 contains no language which can be read as requiring a trial court to consider a visitation issue when determining the merits of a petition to legitimate. In re J.B.K., 169 Ga. App. 450, 313 S.E.2d 147, 1984 Ga. App. LEXIS 1589 (1984). By asserting a counterclaim for paternity, the mother of a child born out of wedlock converted the putative father’s legitimation action into a paternity suit; therefore, the trial court did not have the authority to consider an award of visitation to the putative father. Petersen v. Tyson, 253 Ga. App. 431, 559 S.E.2d 164, 2002 Ga. App. LEXIS 95 (2002). Biological father had no absolute right to grant of legitimacy for purpose of obtaining visitation privileges with his children, and trial judge did not abuse the judge’s inherent discretion in refusing to legitimate such children on ground that

best interests of children would be served by maintaining status quo in stable family unit of children’s mother and mother’s present husband. Mabry v. Tadlock, 157 Ga. App. 257, 277 S.E.2d 688, 1981 Ga. App. LEXIS 1767 (1981). Mother is entitled to notice of petition to legitimate and may voice objection. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, 1992 Ga. App. LEXIS 517 (1992), cert. denied, No. S92C0875, 1992 Ga. LEXIS 589 (Ga. June 25, 1992). Father’s legitimacy order was properly granted as the father never abandoned his opportunity interest in forming a bond with his child; the father loved the child, continued to make efforts to contact him, and financially supported him. Carden v. Warren, 269 Ga. App. 275, 603 S.E.2d 769, 2004 Ga. App. LEXIS 1135 (2004). Out of state paternity order substantially equivalent to Georgia legitimation order and resulted in adoption denial. - Trial court properly denied the applicants’ motion to terminate a father’s parental rights and denied the applicants’ adoption petition because a State of Alabama paternity order obtained by the father was substantially equivalent to a Georgia legitimation order such that the father had not lost his right to contest the adoption and the father properly domesticated the Alabama order with the trial court. Park v. Bailey, 329 Ga. App. 569, 765 S.E.2d 721, 2014 Ga. App. LEXIS 742 (2014). Procedural Issues Delay in filing petition. - After the lapse of thirteen years, public policy forbids the court from becoming involved in a paternity suit when the plaintiff had an opportunity in 1983 to establish paternity even though the plaintiff alleges that the delay was partially a result of his reliance on counsel’s correspondence. Grice v. Detwiler, 227 Ga. App. 280, 488 S.E.2d 755, 1997 Ga. App. LEXIS 905 (1997). Order for genetic testing. - In an action to legitimate a child, the trial court did not err in ordering genetic testing without determining whether it was in the best interests of the child because such testing was necessary to prove that the appellee was, in fact, the child’s bio-

Procedural Issues (Cont’d) logical father before the trial court could consider whether legitimation was in the child’s best interest. Belliveau v. Floyd, 359 Ga. App. 475, 858 S.E.2d 763, 2021 Ga. App. LEXIS 222 (2021). Delay based on genetic testing. - Appellate court rejected a father’s contention that the juvenile court erred in holding that a delay in instituting legitimation proceedings justified a finding that the father abandoned his opportunity interest, as the father’s reason for the delay, specifically, waiting to obtain the results of genetic testing, was not a condition precedent to filing a legitimation petition; moreover, even with the delay, the father could have filed his legitimation petition and then sought court-ordered genetic testing. In the Interest of J.L.E., 281 Ga. App. 805, 637 S.E.2d 446, 2006 Ga. App. LEXIS 1253 (2006). Order terminating a biological parent’s parental rights was upheld on appeal, as the parent failed to file for legitimation of the affected children within 30 days of being notified of the termination petition, despite repeatedly being notified to do so, and despite the appointment of an attorney in the termination proceedings. In the Interest of S.M.G., 284 Ga. App. 64, 643 S.E.2d 296, 2007 Ga. App. LEXIS 244 (2007). Trial court properly terminated a parent’s parental rights to a child as a result of the parent failing to timely file a notice of the petition to legitimate the child with the juvenile court within 30 days. The fact that the termination petition misstated relevant statutes did not relieve the parent of the obligation to file both a petition to legitimate and a notice. In the Interest of M.D., 293 Ga. App. 700, 667 S.E.2d 693, 2008 Ga. App. LEXIS 1052 (2008). Failure to file civil case filing form not fatal to legitimation petition. - Putative biological father’s failure to pay a filing fee and a civil case filing form required by O.C.G.A. § 9-11-3(b) was not fatal to the father’s legitimation claim because the clerk, when asked by the father, did not require payment of a filing fee, and the father’s attorney merely fol-

lowed the procedure suggested by the clerk. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837, 2012 Ga. App. LEXIS 524 (2012). Continuance to complete service. - Within the context of a parental rights termination proceeding, a juvenile court had the discretion to determine whether to grant an extension of time for a putative father to serve the legitimation petition on the mother, pursuant to O.C.G.A. §§ 15-11-96(i), 19-7-22(b), and Georgia case law that allowed application of the procedural rules set out in the Civil Practice Act, including O.C.G.A. § 9-11-4(c) relating to service and extensions thereto; accordingly, the juvenile court’s refusal to hear the legitimation petition was error as was the decision to terminate the putative father’s parental rights under O.C.G.A. § 15-11-94 without first determining that he had standing or not under the legitimation action. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587, 2006 Ga. App. LEXIS 444 (2006), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Denial of motion to sever improper. - Trial court abused the court’s discretion by denying a putative biological father’s motion to sever his petition for legitimation of a son from a husband’s adoption proceeding because the father’s petition substantially complied with the substance of the legitimation statute, O.C.G.A. § 197-22; the petition contained the requisite information, it was served on the wife, and it was timely filed in the proper court, and the father’s failure to file his petition as a separate civil action caused no prejudice to anyone. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837, 2012 Ga. App. LEXIS 524 (2012). Father’s wife has no legal status to object to legitimation even though child was conceived by another woman during wife’s marriage to father. In re Pickett, 131 Ga. App. 159, 205 S.E.2d 522, 1974 Ga. App. LEXIS 1356 (1974). Standing of legitimated father as to challenges to custody. - Upon legitimation, father stands in same position as any other parent regarding challenges to

custody for good and legal cause. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80, 1971 Ga. LEXIS 543 (1971). Right to file objections to petition. - Although O.C.G.A. § 19-7-22 only provides for notice to the mother, this notice implies a right to file objections to the petition. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457, 1982 Ga. App. LEXIS 2446 (1982); Adamavage v. Holloway, 206 Ga. App. 156, 424 S.E.2d 837, 1992 Ga. App. LEXIS 1557 (1992). Georgia Civil Practice Act rules applicable. - Court of Appeals of Georgia, First Division interprets the language of O.C.G.A. § 19-7-22(b) to mean that the procedural rules set out in the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and Georgia case law interpreting those rules should apply to the service of a legitimation petition; accordingly, the Court of Appeals of Georgia, First Division concluded that a juvenile court has discretion to grant a putative biological father a continuance of a legitimation or parental rights termination hearing in order to allow him additional time to perfect service of his legitimation petition upon the biological mother, irrespective of whether the 30-day limitation period set out in O.C.G.A. § 15-11-96(i) has passed. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587, 2006 Ga. App. LEXIS 444 (2006), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Right to trial by jury. - O.C.G.A. § 19-7-40 expressly prohibited jury trials in paternity actions, and since the mother and former boyfriend consolidated a paternity action with a legitimation proceeding, which did allow for a jury trial, the right to a jury trial under the legitimation statute, O.C.G.A. § 19-7-22, had to give way because otherwise the goals of the paternity statute would be thwarted; accordingly, the mother had no right to a jury trial in the consolidated action. Banks v. Hopson, 275 Ga. 758, 571 S.E.2d 730, 2002 Ga. LEXIS 910 (2002). Petitions for legitimation separate civil actions. - Father’s petition for legitimation should have been filed as a

separate civil action because the language within O.C.G.A. § 19-7-22 suggested that legitimation petitions were separate civil actions; the absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837, 2012 Ga. App. LEXIS 524 (2012). Award of attorney’s fees proper as same sex legitimation suit unjustified. - Trial court erred to the extent that the court awarded the respondent attorney fees under O.C.G.A. § 9-15-14(a) as to the petitioner’s legitimation claim involving a same sex relationship because the petitioner cited no law from any jurisdiction for the proposition that a person of either gender may petition to legitimate a child absent a biological relationship, and Georgia law made no provision for such situation. Hill v. Burnett, 349 Ga. App. 260, 825 S.E.2d 617, 2019 Ga. App. LEXIS 138 (2019), overruled in part as stated in Southern Piedmont Law, PC v. Pierre, 362 Ga. App. 474, 869 S.E.2d 90, 2022 Ga. App. LEXIS 50 (2022). Failure to consider best interest of child. - Trial court erred by failing to determine whether legitimizing the child and granting joint custody to the father was in the child’s best interest because it was apparent from the trial court’s oral pronouncement that the court did not analyze those issues and, therefore, the trial court’s judgment was vacated and the case was remanded with direction for the trial court to consider the issues. Westbrook v. Eidys, 356 Ga. App. 619, 848 S.E.2d 660, 2020 Ga. App. LEXIS 498 (2020). Best interests of child. - It was in the best interests of two of the children to grant the petition to legitimate and award temporary custody to their father because the child abandonment charge against their father was nolle prossed; the children had a good relationship with their father; and the father was employed, had stable housing, and had family support to care for the children. In the Interest of N. C., 363 Ga. App. 398, 870 S.E.2d 569, 2022 Ga. App. LEXIS 127 (2022).

DOMESTIC RELATIONS Application

Evidence supported denial of legitimation petition. - Because the evidence presented before the juvenile court showed that a biological father: (1) initially refused to take a DNA test to establish paternity; (2) was hostile toward the child’s case worker; (3) waited over two years after the child’s birth to file a legitimation petition; (4) never visited the child and apparently spoke to the child only once on the telephone after the child was placed in foster care; and (5) failed to provide financial support for the child, the evidence was sufficient to allow the juvenile court to determine that the father abandoned any opportunity and interest to develop a relationship with the child and to deny the father’s legitimation petition. In the Interest of L.S.T., 286 Ga. App. 638, 649 S.E.2d 841, 2007 Ga. App. LEXIS 833 (2007). Trial court did not abuse the court’s discretion by denying the legitimation petition because the evidence supported the superior court’s finding that the biological father abandoned his opportunity interest as he failed to visit and support the mother and child during the pregnancy or after birth and filing a legitimation petition and attending one doctor’s visit was not enough. Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582, 2020 Ga. LEXIS 353 (2020). Husband could not legitimize child. - Former husband was improperly awarded the former wife’s biological child; the husband was unable to legitimize the child under O.C.G.A. §§ 19-7-22 and 197-25, as those legitimation procedures only applied to biological fathers, and the husband and wife always acknowledged that the child, born before the parties’ marriage, was not the husband’s biological father. Veal v. Veal, 281 Ga. 128, 636 S.E.2d 527, 2006 Ga. LEXIS 825 (2006). Petition for legitimation denied when not filed in good faith. - When gist of mother’s objections to father’s petition to legitimate child was that he had no paternal interest in the child but sought only to deprive her of the child by delivering the child into the possession of his mother and father, which if true would authorize the trial court in the exercise of

the court’s discretion to find that the petition was not filed in good faith and to deny the application for legitimation, the trial court did not err in overruling demurrer (now motion to dismiss) to the mother’s objections. Murphy v. Thomas, 89 Ga. App. 687, 81 S.E.2d 26, 1954 Ga. App. LEXIS 549 (1954). Denial of petition improperly set aside. - Trial court erred by setting aside the denial of a biological father’s petition for legitimation because the voluntary acknowledgment of paternity preempted the denial as the father failed to make the trial court aware of the acknowledgment and could not subsequently use the document to set aside the trial court’s final judgment. Allifi v. Raider, 323 Ga. App. 510, 746 S.E.2d 763, 2013 Ga. App. LEXIS 672 (2013), cert. denied, No. S13C1816, 2014 Ga. LEXIS 90 (Ga. Jan. 21, 2014). Evidence did not support denial of legitimation petition. - Trial court erred in denying a parent’s petition to legitimate a child because the parent’s constant payment of financial support coupled with the parent’s avowed interest in establishing and maintaining a relationship with the child mitigated against a finding of abandonment. Binns v. Fairnot, 292 Ga. App. 336, 665 S.E.2d 36, 2008 Ga. App. LEXIS 776 (2008), cert. denied, No. S08C1848, 2008 Ga. LEXIS 876 (Ga. Oct. 27, 2008), overruled in part, Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582, 2020 Ga. LEXIS 353 (2020). New trial after mother participated in fraudulent scheme. - Trial court erred in denying a child’s extraordinary motion for new trial based on the mother’s participation in a fraudulent scheme to have the child legitimated by someone other than the child’s father. Clements v. Phillips, 235 Ga. App. 588, 510 S.E.2d 311, 1998 Ga. App. LEXIS 1577 (1998). Stepfather could not be awarded custody. - It was error for a trial court to award a child’s legal and physical custody to the child’s stepfather because: (1) the child’s mother was permitted to exercise all parental power over the child since the child’s father had not legitimated the child under O.C.G.A. § 19-7-22; (2) the stepfather had not adopted the child; and (3) as a result, the stepfather did not have the

same status as any of the nonparents specified in O.C.G.A. § 19-7-1(b.1), leaving the trial court with no discretion to award the child’s custody to the stepfather. Phillips v. Phillips, 316 Ga. App. 829, 730 S.E.2d 548, 2012 Ga. App. LEXIS 660 (2012). Grandparents’ rights to bring action for custody not dependent on legitimation. - Paternal grandparents’ right to bring an action for custody of a child was controlled by a showing that their son was the parent of the child, not by their son legitimating that child; a trial court’s order dismissing the paternal grandparents’ custody action for lack of standing due to a void legitimation of the child was reversed. Reeves v. Hayes, 266 Ga. App. 297, 596 S.E.2d 668, 2004 Ga. App. LEXIS 310 (2004), cert. denied, No. S04C1297, 2004 Ga. LEXIS 766 (Ga. Sept. 7, 2004). Legitimation judgment authorized. - When the mother had notice and had additionally consented to try all issues between the parties, which included competing claims for custody of the child, and when no objection to the legitimation appears of record, the judgment of legitimation was authorized. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, 1992 Ga. App. LEXIS 517 (1992), cert. denied, No. S92C0875, 1992 Ga. LEXIS 589 (Ga. June 25, 1992). Intervention by adoption agency and adoptive parents. - As legal custodians of the child, adoption agency and adoptive parents had an interest in the father’s petition to legitimate the child, and when their rights were not represented, they had a right to intervene. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457, 1982 Ga. App. LEXIS 2446 (1982). Adoptive parents need not reveal their true identity in their objections to the father’s petition to legitimate the child they seek to adopt. In re Ashmore, 163 Ga. App. 194, 293 S.E.2d 457, 1982 Ga. App. LEXIS 2446 (1982). Modification of support in context of legitimation proceeding. - Even though a petition for modification of child support could be brought in the context of

a legitimation proceeding, a showing of changed circumstances is required before an existing award may be modified. Department of Human Resources v. Jones, 215 Ga. App. 322, 450 S.E.2d 339, 1994 Ga. App. LEXIS 1203 (1994). Order granting legitimation overturned. - It was error to grant the petition of the probable biological father to legitimate a minor child whom the legal father had been raising since birth as his own son since the biological father had abandoned his opportunity by failing to take action for nearly three years, the court did not inquire into and apply the best interests of the child standard, and the court did not consider the legal father’s prior order. LaBrec v. Davis, 243 Ga. App. 307, 534 S.E.2d 84, 2000 Ga. App. LEXIS 457 (2000), aff’d, 274 Ga. 5, 549 S.E.2d 76, 2001 Ga. LEXIS 528 (2001). Termination of parental rights. - Pursuant to O.C.G.A. § 15-11-28(a)(2)(C), the superior court did not have subject matter jurisdiction to terminate the husband’s parental rights because the biological father’s petition to legitimate a child who was born in wedlock was a petition to terminate the parental rights of the legal father; after the superior court determined that the biological father had not abandoned his opportunity interest, the issue became whether the superior court could grant the petition to legitimate the child, and to grant the legitimation petition required the superior court to first terminate the parental rights of the husband, who was the legal father. Brine v. Shipp, 291 Ga. 376, 729 S.E.2d 393, 2012 Ga. LEXIS 674 (2012). Name change. - Trial court did not abuse the court’s discretion in granting a father’s name change petition, pursuant to O.C.G.A. § 19-7-22(g)(1), when he filed a legitimation petition because the evidence supported the trial court’s ruling that it was in the child’s best interest, would strengthen the father and son bond, and the child and mother no longer shared the same surname. Riggins v. Stirgus, 319 Ga. App. 790, 738 S.E.2d 635, 2013 Ga. App. LEXIS 74 (2013).

OPINIONS OF THE ATTORNEY GENERAL Illegitimate child defined. - Illegitimate child, or bastard, is a child born out of wedlock and whose parents do not sub-

sequently intermarry. 1952-53 Ga. Op. Att’y Gen. 138.

RESEARCH REFERENCES Am. Jur. 2d. 41 Am. Jur. 2d, Illegitimate Children, § 113 et seq. C.J.S. 14 C.J.S., Children Out-of-Wedlock, § 16 et seq. ALR. Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531. Statute regarding status or rights of

children born out of wedlock as applicable to children born before it became effective, 140 A.L.R. 1323. What amounts to recognition within statutes affecting the status or rights of illegitimates, 33 A.L.R.2d 705. Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.