How Does the Legal Presumption of Legitimacy Affect Contested Legitimation Cases?

How Does the Legal Presumption of Legitimacy Affect Contested Legitimation Cases?

Jul 17, 2023 | Latest News | 0 comments

For people looking into the paternity of a child and related issues such as child custody, visitation, and support, a significant factor can be the legal presumption of legitimacy. Understanding what it is and how it can affect contested legitimation cases is important. Read on for what you need to know.

What Is Legal Presumption of Legitimacy?

Essentially, legal presumption of legitimacy is a legal term that states that if a child is born to a married couple, the presumption is that the husband is the father of the child. It also means that the child is not considered illegitimate.

Today, it’s still an important legal concept, although the advent of blood tests and DNA testing has the ability to controvert the legal presumption of legitimacy in some cases. If DNA testing shows a high probability that the husband isn’t the father, the legal presumption of legitimacy could be contested in court.

If a child is born to an unmarried couple, they’re considered illegitimate until the father recognizes the child as his. At that point, the child can take the father’s last name, and is considered legitimate. That process is known as legitimation.

What Is the Difference Between a Legal Father and a Biological Father?

In Georgia, while paternity establishes who is the biological father of a child, that doesn’t necessarily make him the legal father. If the couple is unmarried, the biological father needs to do one of several things to be named the legal father as well as the biological father:

  • Must not surrender or terminate his rights to the child.
  • Marry the mother after the child is born and recognize the child as his at that point.
  • Legally adopt the child.
  • Legitimate the child.

Without being named the legal father, he will not have legal rights to the child, including both physical and legal custody (the latter means having the right to be involved in major decisions regarding the child, including medical care, education, religious upbringing if any, or extracurricular activities).

What Is the Process of Legitimation?

Before the legitimation can be complete, the father must also establish paternity. This is required before legitimation, but on its own, establishing paternity doesn’t grant any legal rights to the child, such as physical or legal custody.

There are three ways to establish paternity in Georgia.

  • The parents were married at the time of the child’s birth (legal presumption of legitimacy).
  • The father voluntarily acknowledges the paternity.
  • There’s an administrative determination of paternity, such as genetic testing, that shows there’s at least a 95% or higher probability that the unwed man is the father. This is a common method in establishing paternity in Georgia today.

Once the father establishes paternity, the process of legitimation begins with filing a petition for legitimation, generally in the superior court in the county where the mother lives. If the father wants to have either custody or visitation with the child, he needs to provide evidence that it’s in the child’s best interests for him to do so.

How long the process of legitimation takes depends on the case and whether or not the mother contests it. If both parents are in agreement, it can be finalized relatively quickly. If it’s contested, it will take longer (and cost more).

Note that the father is generally expected to provide support for the child even before the legitimation process begins.

Who Can Request Establishment of Paternity in Georgia?

If a couple isn’t married in Georgia, there are several people who can request that the paternity be established, including:

  • The mother
  • The alleged father
  • Any relative caring for the child
  • The Department of Human Services (if someone filed for public assistance on behalf of the child)

Paternity can also be challenged in certain circumstances if the father has reason to believe the child isn’t his or the mother challenges paternity.

Does the Mother Have the Right to Refuse the Legitimation?

The mother can reject the petition for legitimation, but that’s not the final answer. If she denies or contests the petition, the courts will hold a hearing and issue a final ruling. They’re also likely to require DNA testing if it hasn’t already been done as part of establishing paternity.

Usually, the mother who rejects the petition brings up the abandonment of opportunity interest. In Georgia, the unwed father is granted an opportunity interest to become involved in his child’s life. If he doesn’t act on that interest, whether not being present for the birth or not spending time with the child, he may be considered as having abandoned the opportunity interest.

The courts will also likely ask if the intercourse that resulted in the pregnancy was consensual and whether there’s a history of family violence. These are conditions that could be judged in light of the child’s best interests.

What Should I Do if I’m Involved in a Contested Legitimation Case?

Call Lunn Law LLC as soon as possible at 770-762-4628 to set up a case assessment. The laws concerning legitimation are complex and there is great benefit from the assistance of knowledgeable, experienced legitimation and paternity attorneys. When we represent you, we focus on getting the best possible outcome for your case, whether that’s gaining full or partial physical and/or legal custody, visitation, or the amount of child custody owed. We know you want what’s best for your child, and we’ll develop your case with that achievement front and center.