There are moments in life where waiting has its benefits. However, in the world of domestic relations law, waiting to pursue and assert your custody rights can potentially mean losing your ability to pursue your rights. When parties are not married, the mother of the child automatically gains sole custodial rights once the child is born. See O.C.G.A. 19-7-25. Therefore, a father must legitimate the child in order for him to request custodial rights and parenting time and to establish rights of inheritance as though the child was born in a marriage. Id. The signing of a birth certificate only serves as a record of acknowledgment of the pregnancy; on its own, signing the birth certificate of your child does not create legitimacy; only a Court order can create that legal relationship.
When Is The Right Time?
It is common that many fathers do not know when the right time is to legitimate their children that are born outside of a marriage. Some fathers can go for years not knowing that they do not have any legal rights to their children. It is also prevalent that many fathers believe that signing the birth certificate creates a legitimate legal relationship and will forego pursuing legitimation. However as stated before, this is farthest from the truth.
It is also very common for fathers to have informal custodial arrangements with the child’s mother to allow for custody and parenting time. These arrangements can go on for years. However, upon one party becoming upset, the arrangement could be voided. The mother can legally cut off access to the child and completely shut out the father from the child’s life due to Georgia law not recognizing these arrangements.
Until a father is legitimated, he has no legal means to enforce his custodial rights. Under Georgia law, these rights are only granted through a Court order if the father is not married to the mother of the child. Therefore, a father must initiate the legitimation process and seek these rights as soon as possible after the child’s birth. The longer a father goes without these rights, the more challenging it can be to obtain them from the Court. In some cases, the Court may even deny a father’s right to legitimate a child even when not much time has passed between conception and the filing of the case.
How Long of A Wait Is Too Long?
There is a possibility that a father can take too long to legitimate their child and lose their ability to seek custodial rights. Courts in Georgia have ruled that abandonment of a child can serve as a basis to deny a legitimation action. In the case of Morris v. Morris, 309 Ga. App. 387, 389 (2), 710 S.E.2d 601 (2011) the Court of Appeals articulated some factors which may support a finding of abandonment. The factors were: a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child. Id.
The question remains. Exactly how long is too long to wait? Unfortunately, there is no bright-line answer to this question. For example, the Court in Binns v. Fairnot , 292 Ga. App. 336, 338, 665 S.E.2d 36 (2008), allowed the father to pursue his legitimation case following two years of no contact with the minor child. The Court of Appeals rejected the trial court’s conclusion that father abandoned his opportunity interest, even though father unilaterally stopped contacting the child more than two years before he filed legitimation petition. Id.
The Importance of Continued Engagement
While the amount of time that a father takes to file for his legitimation is important, he needs to make an effort to be an active and present parent as circumstance allows. As mentioned by the Supreme Court of Georgia in In re Eason , 257 Ga. 292, 358 S.E.2d 459 (1987) “The opportunity interest begins “at conception and endures probably throughout the minority of the child. But it is not indestructible.” This means that fathers must be around during the pregnancy and continue to remain around during the formative years of the child’s life to have strong evidence of pursuing their opportunity interest. Fathers have to demonstrate that they are paying some form of support to the mother or are providing support in the child’s medical care and education to prove that they are pursuing their interest. Without proof of pursuit of this interest, a father will not be able to legitimate their child.
In re Eason also stands for the proposition that continued engagement with the child is important as the Court can still deny legitimation even where there is no delay to file for a legitimation case. The Georgia Supreme Court affirmed a trial court’s decision to deny legitimation, even when there was no delay in terms of filing the petition. The Supreme Court of Georgia reasoned “If [a biological father] grasps [his] opportunity [interest] and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.” Id, 257 Ga. at 296 (1), 358 S.E.2d 459. Thus, it is important to not wait to file a legitimation and remain involved with the child while the pregnancy is underway and beyond.
Legal and Practical Reasons to Seek Legitimation Quickly
There are several legal and practicable reasons why you should not wait to initiate a legitimation case.
It becomes harder to prove involvement with the minor child as they get older. Unless you are diligent with capturing photographs of maintaining documentary evidence, the passage of time makes legitimation and custody cases more challenging.
If the mother of the child withholds access and visitation, waiting for a longer period could be used as evidence of unwillingness be involved with the child. Also, if the mother of the child withholds access, then it will also be impossible to demonstrate physical involvement with the child’s day to day life.
A delay in filing a legitimation, means a delay in getting custodial rights that are legally recognized.
Until a father is legitimated, the child cannot inherit from his father nor can the father inherit from his child. Thus, it is important that to ensure a clear line of inheritance without a will that a father legitimate his child.
No two cases will be exactly the same. However, the benefits of legitimating your child early far outweigh some of the challenges that could be experienced by waiting.
Want to Get the Process Started?
If you are a father who is interested in legitimating your child, we strongly recommend you speak with an attorney about your concerns and goals with respect to legitimation. If you have any questions about legitimation, child custody, or child support obligations that can arise from a legitimation, reach out to The Manely Firm to get clarity about the process of legitimation to ensure that you are clear about the process of gaining custodial rights and formalizing the relationship between you and your child.
Ervin M. HallThe post Why You Shouldn’t Wait to Legitimate first appeared on The Manely Firm, P.C..