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Legitimation: Putting off Fatherhood Until it is Too Late!

On Behalf of | Sep 27, 2015 | Legitimation

Tonight’s post on moving quickly in legitimation was written by our Lawrenceville and Gainesville divorce attorney, Jennifer Thuy-Tien McCall.

We address the importance of quickly legitimating children on our blog often and for good reason. Until an unwed biological father legitimates his child, that father has no legal rights to the child. While he and his child’s mother may be getting along at first, we often see these relationships sour. Then what happens? 

Maybe mom lets you see the child now, but what happens when she demands more money than you can afford? What happens when she decides she wants to move away? What happens when her new man thinks he’s a better father than you?

Further, the court can decide that you’ve abandoned your child if you don’t move quickly. A finding of civil abandonment may foreclose your opportunity to ever legitimate your child. A finding of criminal abandonment may lead to criminal charges.

The court recognizes that biological fathers should have an opportunity to develop a relationship with their children. As long as the father accepts responsibility for his child, the father should be able to enjoy the many benefits of establishing a parent-child relationship. This is called an opportunity interest. 

This opportunity interest, however, can be lost or abandoned if the father does not pursue it in a timely fashion. Legitimation opportunities grow stale. When the court decides whether the father has exercised or abandoned his opportunity interest, the court will consider factors like the father’s involvement during the mother’s pregnancy, the time it took for the father to file his legitimation petition, the father’s contact with the child, and the father’s support to the mother and child.

The court has broad discretion in determining what is too great a delay for a father to assert his right to legitimate. In the case of In the Interest of J.M., 289 Ga.App. 439 (2008), a delay of twenty-four months was too long. In the case of In re Baby Girl Eason, 257 Ga. 292 (1987), there is language to suggest that a court could even find nine months a long enough delay to determine that the father has abandoned his opportunity interest.

If the court finds that you’ve abandoned your opportunity interest, you will not be able to legitimate your child and you will not have any rights to the child, ever. Fathers often tell us that they wait to legitimate because they’re afraid to upset mom; go along to get along. But mom may be more forgiving than the court.

Besides, mom can’t impose a death sentence on your relationship with your child. The court can.

Jennifer Thuy-Tien McCall