Monday, December 2, 2013

Unmarried Fathers - Do You Know Your Rights?

Some of the most heartbreaking cases I've had are those of fathers not married to their child's mother and not realizing that they have to take steps to secure their legal rights to the child. In Georgia, an unmarried father has no rights to his child at all unless and until he either marries the mother and publicly claims the child as his own and gives the child his name or files a petition in court to legitimate the child. Until one of these two events happen, the mother has all parental control over the child and the father has no rights.

I have had several cases in which the unmarried parents of a child live together for a period of time as a family, and then the parents decide to separate. In Georgia, if the father has not legitimated his child, he has no rights and the mother legally can prevent the father from contact with the child. While this may seem morally wrong, it is legally permissible.

What can unmarried fathers in Georgia do in order to protect their rights? As soon as the child is born the father should file a petition to legitimate the child; he should do this regardless of whether he is living with the child's mother. If there is any doubt as to paternity, a DNA test should be completed prior to the filing of the legitimation petition.

Custody, parenting time (visitation), and child support can be addressed in a Georgia legitimation action. In Georgia an unmarried father of a child can secure his custodial rights (including parenting time) by filing a petition for legitimation; doing so will provide the father with custodial rights and a court-ordered parenting time schedule that the father may rely on even in periods of disagreement with the child's mother. Upon receiving an order of legitimation, the biological father of a child is recognized as the legal father and stands on the same legal footing as the mother in regard to custodial and parenting time rights.

In Georgia, there is a difference between being the biological father and the legal father of a child. Having the status of only the biological father does not provide the father with any rights. It does not matter if the father paid for the pregnancy and maternity care of the mother, was at the birth of the child, and signed the birth certificate. It does not matter if the parents lived together as a family with the child and the father supported the mother and child for several years. If the father does not marry the mother, the only means by which the father can have any legal rights to the child is to file a legitimation petition. A child who has been legitimated by his or her father may inherit from the father, whereas a child that has not been legitimated might not legally be able to inherit from the father; this is extremely important legal distinction that could have unintended or devastating consequences.

At a minimum, a biological father in Georgia should list his name on the putative father registry with the Department of Human Resources/Vital Records. By taking that act, the biological father can at least ensure that no legal action such as adoption can be taken by another party without notice to the father. A listing on the putative father registry does not provide legal rights as far as custody and parenting time, but it does prevent legal action regarding the child to be taken without notice to the father. In order to successfully object to any such legal action once he has notice, the father would likely have to follow through with a legitimation petition, but at least he will have the opportunity to protect his rights.

A biological fatherin Georgia does not have an absolute right to legitimate his child. It is possible for a father to lose his right to legitimate his child if he waits too long in order to procure his legal rights. There is no set time limit after which a father automatically loses his rights, but the longer the father goes without legitimating the child the higher the risk that he has abandoned his opportunity interest to develop a relationship with the child, and his legitimation petition could be denied.

An unmarried father in Georgia who wishes to have legal rights to his child and to stand on the same legal ground with the mother regarding custody and parenting time must file a legitimation petition, and should do so immediately after the child's birth regardless of his relationship with the mother or the fact that he might be living with and/or supporting the child. Biological fathers of children born out of wedlock should seek legal advice as soon as possible in order to protect their rights and make sure that they are legally able to maintain their relationship with the child.

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