O.C.G.A. § 19-7-24 (2019)

Annotations

Cross references. Parents’ obligation to child, generally, § 19-7-2. Law reviews. For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 79 (2006).

JUDICIAL DECISIONS Statutory scheme relating to illegitimate children and remedies available to state require support from both parents and both are subject to criminal prosecution. Hudgins v. State, 243 Ga. 798, 256 S.E.2d 899, 1979 Ga. LEXIS 1072 (1979). Section not applicable to child born during marriage. - Trial court erred in ordering the father to reimburse the mother for expenses because it was uncon-

tested that the child was not born out of wedlock. Perkins v. Perkins, 347 Ga. App. 345, 819 S.E.2d 490, 2018 Ga. App. LEXIS 514 (2018). Liability for period prior to paternity adjudication. - Trial court erred in refusing to award back support to the mother of a child for those periods prior to an adjudication of paternity when she had been supporting the child without the benefit of public assistance payments.

Weaver v. Chester, 195 Ga. App. 471, 393 S.E.2d 715, 1990 Ga. App. LEXIS 568 (1990). Both parents are responsible for illegitimate child’s support. - Although under common law an illegitimate child was the legal responsibility only of the mother, the statute also made the father responsible for the child’s support. Thorpe v. Collins, 245 Ga. 77, 263 S.E.2d 115, 1980 Ga. LEXIS 696 (1980). Strict construction as to liability of father of illegitimate child. - Statutes imposing liability on illegitimate child’s father for child’s support and education, being in derogation of common law, must be strictly construed. Washington v. Martin, 75 Ga. App. 466, 43 S.E.2d 590, 1947 Ga. App. LEXIS 561 (1947). Support when alleged father is deceased. - Because at the time of father’s death child’s mother was in the process of establishing deceased as child’s father for the purpose of obtaining child support and because father had responsibly fulfilled his child support obligations to his other child, the child had a reasonable expectation that the deceased father would fulfill his statutorily imposed obligation to support her as well. In re Adventure Bound Sports, Inc., 858 F. Supp. 1192, 1994 U.S. Dist. LEXIS 9117 (S.D. Ga. 1994). Civil action by mother of illegitimate child for child support. - Mother of an illegitimate child may maintain a civil action to compel the father to support the child. Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 451, 1982 Ga. LEXIS

1252 (1982); Evans v. State, 178 Ga. App. 1, 341 S.E.2d 865, 1986 Ga. App. LEXIS 1596 (1986); Coxwell v. Matthews, 263 Ga. 444, 435 S.E.2d 33, 1993 Ga. LEXIS 670 (1993). When there is an absent parent who does not provide support, and the payment of public assistance is for the support of both the dependent child and the custodial parent who is not able, without the benefit of public assistance, to provide support and maintenance for the child, it is inconsistent with both the goals of the Public Assistance Act and the Child Support Recovery Act to conclude that the payment of Aid to Families with Dependent Children imposes upon the custodial parent a debt due and owing the state under O.C.G.A. § 19-11-5. Cox v. Cox ex rel. State Dep’t of Human Resources, 255 Ga. 6, 334 S.E.2d 683, 1985 Ga. LEXIS 866 (1985). Adequate pre-natal medical care. - Duty to protect and maintain a child includes the duty to ensure that the child receives adequate medical care prior to and during birth. Coxwell v. Matthews, 263 Ga. 444, 435 S.E.2d 33, 1993 Ga. LEXIS 670 (1993). Health care insurance. - In a mother’s paternity suit to establish the legitimation, custody, and support of her minor child by the father, the trial court did not err in failing to require the father to pay for the child’s health insurance under O.C.G.A. § 19-7-24 if not employed by the NFL. Jackson v. Irvin, 316 Ga. App. 560, 730 S.E.2d 48, 2012 Ga. App. LEXIS 612 (2012).

RESEARCH REFERENCES Am. Jur. 2d. 41 Am. Jur. 2d, Illegitimate Children, § 87 et seq. C.J.S. 14 C.J.S., Children Out-of-Wedlock, § 39 et seq. ALR. Criminal responsibility for abandonment or nonsupport of children who are being cared for by charitable institution, 24 A.L.R. 1075. Nonstatutory duty of father to support illegitimate child, 30 A.L.R. 1069.

Illegitimate child as within statute relating to duty to support child, 30 A.L.R. 1075. Civil liability of father for necessaries furnished to child taken from home by mother, 32 A.L.R. 1466. Liability of parent for necessaries furnished to adult child, 42 A.L.R. 150. Criminal responsibility of parent under desertion or nonsupport statutes, as affected by child’s possession of independent means, or by fact other persons supply his needs or are able to do so, 131 A.L.R. 482.

Construction and application of statute charging father and mother jointly with child’s care and support, 131 A.L.R. 862. Temporary allowance for support or costs pending action or proceeding for declaration of paternity of an illegitimate child, 136 A.L.R. 1264. Award in bastardy proceedings as provable or dischargeable in bankruptcy, 162 A.L.R. 789. Foreign filiation or support order in bastardy proceedings, requiring periodic payments, as extraterritorially enforceable, 16 A.L.R.2d 1098. Maintainability of bastardy proceedings by infant prosecutrix in her own name and right, 50 A.L.R.2d 1029. Right of nonresident mother to maintain bastardy proceedings, 57 A.L.R.2d 689. Liability of mother’s husband, not the father of her illegitimate child, for its support, 90 A.L.R.2d 583. Nature of care contemplated by statute imposing general duty to care for indigent relatives, 92 A.L.R.2d 348. Effect of marriage of woman to one other than defendant upon her right to institute or maintain bastardy proceeding, 98 A.L.R.2d 256. Application, to illegitimate children, of criminal statutes relating to abandonment, and nonsupport of children, 99 A.L.R.2d 746. Validity and construction of putative father’s promise to support or provide for illegitimate child, 20 A.L.R.3d 500.

Power of divorce court, after child attained majority, to enforce by contempt proceedings payment of arrears of child support, 32 A.L.R.3d 888. Right of child to enforce provisions for his benefit in parents’ separation or property settlement agreement, 34 A.L.R.3d 1357. Death of putative father as precluding action for determination of paternity or for child support, 58 A.L.R.3d 188. Insurance: term “children” as used in beneficiary clause of life insurance policy as including illegitimate child, 62 A.L.R.3d 1329. Validity, construction, and application of statute imposing upon stepparent obligation to support child, 75 A.L.R.3d 1129. Parent’s obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334. Child’s right of action for loss of support, training, parental attention, or the like, against third person negligently injuring parent, 11 A.L.R.4th 549. Right to credit on child support payments for social security or other government dependency payments made for benefit of child, 34 A.L.R.5th 447. What voluntary acts of child, other than marriage or entry into military service, terminate parent’s obligation to support, 55 A.L.R.5th 557. Liability of father for retroactive child support on judicial determination of paternity, 87 A.L.R.5th 361.

19-7-25. In whom parental power over child born out of wedlock lies. Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in Code Section 19-7-22. Otherwise, the mother may exercise all parental power over the child. History. Orig. Code 1863, § 1750; Code 1868, § 1790; Code 1873, § 1799; Code 1882, § 1799; Civil Code 1895, § 2509; Civil Code 1910, § 3028; Code 1933, § 74-203; Ga. L. 1988, p. 1720, § 8; Ga. L. 2008, p. 667, § 5/SB 88; Ga. L. 2016, p. 304, § 4/SB 64.

Cross references. Parental power, generally, § 19-7-1. Editor’s notes. Ga. L. 2008, p. 667, § 1/SB 88, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Care of a Grandchild Act.’” Ga. L. 2008, p. 667, § 2/SB 88, not

codified by the General Assembly, provides: “The General Assembly finds that: “(1) An increasing number of relatives in Georgia, including grandparents and great-grandparents, are providing care to children who cannot reside with their parents due to the parent’s incapacity or inability to perform the regular and expected functions to provide such care and support; “(2) Parents need a means to confer to grandparents or great-grandparents the authority to act on behalf of grandchildren without the time and expense of a court proceeding; and “(3) Providing a statutory mechanism for granting such authority enhances family preservation and stability.” 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 for-

mer 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 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, “In re Baby Girl Eason: Expanding the Constitutional Rights of Unwed Fathers,” see 39 Mercer L. Rev. 997 (1988). 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).

JUDICIAL DECISIONS Constitutionality of section. - Statute did not violate U.S. Const., amends. 5 and 14. Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246, 1977 Ga. LEXIS 970 (1977), aff’d, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511, 1978 U.S. LEXIS 52 (1978). Statute did not necessarily deprive natural father of his parental rights under due process and equal protection under U.S. Const., amends. 5 and 14. Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511, 1978 U.S. LEXIS 52 (1978). Consideration of custody issues is not precluded in a situation when that claim as well as legitimation is pending before the court by consent of the parties and there is jurisdiction of the parents, child, and subject matter in the court. Ganny v. Ganny, 238 Ga. App. 123, 518 S.E.2d 148, 1999 Ga. App. LEXIS 739 (1999), cert. denied, No. S99C1410, 1999 Ga. LEXIS 988 (Ga. Nov. 12, 1999). Determination of home state. - Although O.C.G.A. § 19-7-25 provided that only the mother of a child born out of wedlock was entitled to custody of the child, when a mother moved to Florida with the child but permitted the child to

stay with the child’s father in Georgia for longer than the child stayed with the mother in Florida, and all the child’s health care occurred in Georgia, the child’s “home state” was Georgia for purposes of O.C.G.A. § 19-9-61(a). Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425, 2015 Ga. App. LEXIS 295 (2015). When mother has prima facie rights conferred by statute. - Unless child is illegitimate, mother does not prima facie have rights conferred by statute. Therefore, a contract which mother alone entered into with her aunt, consenting for custody and adoption of child, does not constitute a superior right which would prevent trial judge in action for habeas corpus to award child to another aunt, and her husband. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805, 1946 Ga. LEXIS 358 (1946). Prima facie right to custody was in mother. Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150, 1942 Ga. LEXIS 626 (1942); Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420, 1948 Ga. LEXIS 566 (1948). Former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) must be construed in connection with former

Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2). Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150, 1942 Ga. LEXIS 626 (1942). Discretion reposed in trial judge was inapplicable unless parental rights have been lost. Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420, 1948 Ga. LEXIS 566 (1948). Mother is entitled to custody as against third parties. - Mother under former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) cannot be denied custody of child in habeas corpus proceeding against third parties unless it was shown that parental power was lost under provisions of former Code 1933, §§ 74-108 - 74110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). McMillan v. McMillan, 224 Ga. 790, 164 S.E.2d 839, 1968 Ga. LEXIS 950 (1968). Mother within definition of former Code 1933, § 74-203 (see now O.C.G.A. § 19-725) cannot be denied custody of child at habeas corpus proceeding against third parties unless it was shown her parental rights were lost under provisions of former Code 1933, § 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 197-4) or that she was unfit. Pettiford v. Mott, 230 Ga. 692, 198 S.E.2d 662, 1973 Ga. LEXIS 1035 (1973). Control of minor illegitimate child not legitimated by father belongs exclusively to mother. Perry v. State, 113 Ga. 936, 39 S.E. 315, 1901 Ga. LEXIS 421 (1901); Blakemore v. Blakemore, 217 Ga. 174, 121 S.E.2d 642, 1961 Ga. LEXIS 405 (1961). Standing of father of illegitimate child. - Father of illegitimate child, unless he legitimates the child, has no standing with reference to child. Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737, 1966 Ga. LEXIS 640 (1966). 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). 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). Convicting putative father of cruelty by depriving sustenance. - Even though the mother of an illegitimate child is entitled to custody, the putative father has rights and duties with respect to the child; thus, evidence supported conviction of the father of a four-year-old illegitimate child for cruelty by depriving the child of necessary sustenance. Strickland v. State, 211 Ga. App. 48, 438 S.E.2d 161, 1993 Ga. App. LEXIS 1400 (1993). Mother of illegitimate child was not the only recognized parent under the law; the putative father was also a parent. Nelson v. Taylor, 244 Ga. 657, 261 S.E.2d 579, 1979 Ga. LEXIS 1362 (1979). Mother may relinquish control to father. - When mother of illegitimate children relinquishes all of her rights to father of such children, she cannot thereafter regain possession of children in habeas corpus proceeding, when condition of father to maintain and support them is unchanged. Kirkland v. Canty, 122 Ga. 261, 50 S.E. 90, 1905 Ga. LEXIS 166 (1905). Contest between father of illegitimate child and third persons to whom mother relinquished control. See Day v. Hatton, 210 Ga. 749, 83 S.E.2d 6, 1954 Ga. LEXIS 449 (1954). Appellate court reversed the trial court’s judgment awarding custody of a father’s daughters to the daughters’ grandmother because the trial court did not find that awarding custody to the father, who legitimized his daughters after he learned that their mother had died, would harm the children physically or

emotionally. Jones v. Burks, 267 Ga. App. 390, 599 S.E.2d 322, 2004 Ga. App. LEXIS 652 (2004). When father has prima facie right of custody. - When mother of child is dead, father has prima facie right of custody, and in order to sustain contention that he has lost his parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made. Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614, 1960 Ga. LEXIS 283 (1960). Mother’s right to recover for homicide of illegitimate son. - See Robin-

son v. Georgia R.R. & Banking Co., 117 Ga. 168, 43 S.E. 452, 1903 Ga. LEXIS 186 (1903). Best interest standard applied after child legitimized. - Trial court erred in applying the change in circumstances standard to a father’s custody petition as the father had legitimized the child, but no previous custody determination had been made; the best interest of the child standard set forth in O.C.G.A. § 19-9-3(a) should have been used. Braynon v. Hilbert, 275 Ga. App. 511, 621 S.E.2d 529, 2005 Ga. App. LEXIS 1018 (2005).

RESEARCH REFERENCES Am. Jur. 2d. 41 Am. Jur. 2d, Illegitimate Children, § 93. C.J.S. 14 C.J.S., Children Out-of-Wedlock, §§ 36, 37. ALR. Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531. Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 18 A.L.R.2d 948. Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R.2d 497. Right of mother to custody of illegitimate child, 98 A.L.R.2d 417. Right of putative father to visit illegitimate child, 15 A.L.R.3d 887. Award of custody of child where contest is between child’s father and grandparent, 25 A.L.R.3d 7. Right of putative father to custody of illegitimate child, 45 A.L.R.3d 216.

Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421. Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489. What constitutes “duress” in obtaining parent’s consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527. Power of parent to have mentally defective child sterilized, 74 A.L.R.3d 1224. Rights and obligations resulting from human artificial insemination, A.L.R.4th 295. Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born, 84 A.L.R.4th 655.