Tonight’s post on Legitimation was written by our Lawrenceville Family Law attorney, Wesley Wilson.
A friend of mine recently had a baby with his live-in girlfriend. A couple of days into fatherhood, I decided that I should pull him aside and speak to him about his rights as a father. Since I am a father of a six year old, born out of wedlock, I wanted to make sure my friend was aware of his situation. The unfortunate part was that at that time, he had no rights as a father.
A child born of a lawful marriage is the legitimate child of both parents. This means that both parents have a right to time with the child and that the child can inherit from both parents in the event that one of them dies. By contrast, a child born out of wedlock is only the legitimate child of the mother. So, what does that mean for our unwed father?
It means that any Father, who wants to make sure that they have equal rights to their child must first legitimate that child. What is legitimation? Legitimation actions are brought by unwed fathers to help establish their rights to time with their children. Fathers in such a position want to legitimate their children, which allows them to gain the status of legal parent, ask for custody and visitation rights. In addition, it allows the minor child to inherit from the father.
Legitimation can be consented to. If it is not consented to, then a petition must be filed by the father of the child with the Superior Court in the county in which he resides. I’ve had to legitimate myself as my daughter’s father here in Gwinnett County, and it is a fairly simple process when the mother consents.
It is rare that a petition for legitimation is denied. The only regular reason that it would be denied is if the paternity of the father is at issue. A mother or alleged father can request a paternity test. If there is any doubt, it does make sense to conduct a DNA test, whether the mother or alleged father likes it or not. Some of our judges in Gwinnett County will not approve a legitimation without a DNA test.
After paternity is established, a father is almost always deemed the legitimate father of the child. You should know, however, that this process only allows you to establish parental rights and itself does not grant custody or visitation. That is a separate action, which also must be filed with the court, though this action can be consolidated with the legitimation petition and all heard at once.
Back to my friend, my apprehension with telling him was that I was afraid his significant other might not take it well. Being handed official court documents does not go over well with everyone. However, I did not want him to find himself in a position later on that would affect his ability to parent his child if things did not work out between the two of them. He understood this, as his number one priority in life was now his child. Legitimating himself was the first way he could do this, and that was exactly what he did.