A legitimation action is necessary for a father to establish rights to a child born out of wedlock unless the child is considered presumptively legitimate under O.C.G.A. § 19-7-20.
The mother of a child born out of wedlock is entitled to custody of the child, unless the father brings a legitimation action. Otherwise, the mother may exercise all parental power over the child. O.C.G.A. § 19-7-25. It does not matter that the biological father signed the birth certificate. A father to a child born out of wedlock does not have rights to the child until he legitimates the child.
Legitimation Action Jurisdiction and Venue
A legitimation action should be brought in the Superior Court of the county of residence of the child's mother or other party having legal custody of the child. If the mother or party having legal custody cannot be found, or they reside outside the state, then the petition should be brought in the county that the father or child resides. However, it is important to note that if an adoption is pending, then the action should be brought in the county of the pending adoption.
After an order is signed and filed granting the legitimation, the father stands in the same position as any other parents as to the custody of the child and has a claim to the parental and custodial rights. The Court will use the best interest of the child standard to make such determinations of custody and visitation.
Name Change as a result of a legitimation
Riggins v. Stirgus, 319 Ga. App. 790, 738 S.E.2d 635 (2013).
The trial court did not abuse the Court's discretion in granting a 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.