O.C.G.A. § 19-7-23 (2019)

Annotations

JUDICIAL DECISIONS Statute codifies common law that child born out of wedlock whose parents did not subsequently intermarry was illegitimate. Hobby v. Burke, 227 F.2d 932, 1955 U.S. App. LEXIS 3281 (5th Cir. 1955). Construction with O.C.G.A. § 197-1. - 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). Marriage of parents and father’s recognition of child legitimates child. - 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, 1967 U.S. Dist. LEXIS 11006 (M.D. Ga. 1967). Legitimation by marriage dates from birth. - Former Code 1933, §§ 74101 and 74-201 (see now O.C.G.A. §§ 197-20 and 19-7-23) make child whose par-

ents marry after child’s birth legitimate for all purposes from date of birth. Morris v. Dilbeck, 71 Ga. App. 470, 31 S.E.2d 93, 1944 Ga. App. LEXIS 134 (1944). Legitimate child may inherit from father’s estate. - See Morris v. Dilbeck, 71 Ga. App. 470, 31 S.E.2d 93, 1944 Ga. App. LEXIS 134 (1944). Mother of child born during wedlock is precluded by public policy from asserting the child’s illegitimacy to show consideration for contract with man other than her husband, providing for payment of certain monthly sum for the child’s support. Colson v. Huber, 74 Ga. App. 339, 39 S.E.2d 539, 1946 Ga. App. LEXIS 533 (1946). Presumption of legitimacy not conclusive. - While there is a strong presumption that child born during wedlock is legitimate, this presumption is not conclusive, and will be held to have been rebutted, when proof to contrary is clear. McLoud v. State, 122 Ga. 393, 50 S.E. 145, 1905 Ga. LEXIS 220 (1905); Jones v. State, 11 Ga. App. 760, 76 S.E. 72, 1912 Ga. App. LEXIS 161 (1912). Rebuttal of presumption of legitimacy. - Presumption of legitimacy of children born in wedlock may be rebutted by evidence of nonaccess or other testimony. Thornton v. State, 129 Ga. App. 574, 200 S.E.2d 298, 1973 Ga. App. LEXIS 1060 (1973); Parks v. State, 155 Ga. App. 44, 270 S.E.2d 271, 1980 Ga. App. LEXIS 2449 (1980). Whether presumption has been rebutted is for jury determination. - It is duty of jury to weigh evidence against presumption, and to decide, 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 Ga. App. LEXIS 2449 (1980). When child of married woman is illegitimate. - Child of married woman

begotten by one who is not her husband is illegitimate. Jones v. State, 11 Ga. App. 760, 76 S.E. 72, 1912 Ga. App. LEXIS 161 (1912). Legitimacy of children born of bigamous marriage is unclear. - Because it was not possible to determine from former Code 1933, §§ 74-201 and 53-104 (see now O.C.G.A. §§ 19-7-23 and 19-3-5, respectively) whether General Assembly intended children born following wedding between single man and woman already married to another man to be legitimate or illegitimate children, the man’s trustors executing trusts must be charged with knowledge that the word “children” as used in their trusts would not per se include illegitimate children. King v. King, 218 Ga. 534, 129 S.E.2d 147, 1962 Ga. LEXIS 555 (1962). When children of bigamous marriages are legitimate. - Construing former Code 1933, § 74-201 (see now O.C.G.A. § 19-7-23) in connection with former Code 1933, § 53-104 (see now O.C.G.A. § 19-3-5) which provided that children of marriages of persons unable, unwilling, or fraudulently induced to contract were legitimate although such marriages were void, the Supreme Court concluded that the legislature intended to remove stigma of bastardy from innocent children if their parents go through a marriage ceremony, even though marriage was void because one of the parties was unable to contract marriage by reason of an existing marriage. Brazziel v. Spivey, 219 Ga. 445, 133 S.E.2d 885, 1963 Ga. LEXIS 478 (1963). Word “children” does not per se include illegitimate children. King v. King, 218 Ga. 534, 129 S.E.2d 147, 1962 Ga. LEXIS 555 (1962).

OPINIONS OF THE ATTORNEY GENERAL Issue born of common-law marriage would be legitimate. 1958-59 Ga. Op. Att’y Gen. 89.

RESEARCH REFERENCES Am. Jur. 2d. 41 Am. Jur. 2d, Illegitimate Children, § 1 et seq. C.J.S. 14 C.J.S., Children Out-of-Wedlock, § 1 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. 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.

Determination of paternity, legitimacy, or legitimation in action for divorce, separation, or annulment, 65 A.L.R.2d 1381. Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613. Death of putative father as precluding action for determination of paternity or for child support, 58 A.L.R.3d 188. 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.