Dissolution of the Uncivil Union: Issues of Legitimation and Child Custody

Determining your standing as a biological parent can be one of the biggest challenges people face when the reality hits that his or her relationship with his or her significant other may have run its course.

Whether you are the biological mom fighting to have the biological father pay child support or commit to actions that are in the best interest of the child, or the biological dad fighting to remain a strong part of the child's life, you need an experienced attorney to advise you of your rights and guide you through the legal processes associated with child custody and visitation.

Legitimation: In the state of Georgia, only the mother of a child born out of wedlock is entitled to custody of the child unless the father legitimates the child as provided by the law. Even where the biological father is listed on the child's birth certificate, the act of legitimation is the only way, absent marrying the mother of the child, that the father may establish his legal rights to his child. Without legitimation, a father's only legal duty is to provide child support for the child until the child reaches the age of 18 or becomes emancipated.

Legitimation, in its most basic sense, is an order from the court that creates a father and child relationship legally between a father and his child and sets the stage for a father who wishes to have recognized his right of physical access to the child following dissolution of a non-marital relationship. An order of legitimation is the only way that the father of a child born out of wedlock may petition for custody and/or visitation.

In Georgia, a petition for legitimation may be filed in the county of the residence of the child's mother or other party having legal custody or guardianship of the child, or in rare circumstances in the county of the father's residence. Once a child has been legitimized by order of the court, the father is thereafter entitled to have issues resolved regarding the physical and legal custody of the child. In some cases, where the father's relationship with the mother is irretrievably torn, legitimation may be the only way in which the father can guarantee a continued relationship with his child.

Custody: In Georgia, either parent may gain custody based upon the "best interests" of the child. Under the "best interests" standard, the court looks at many factors, including the following:

The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
Each parent's knowledge and familiarity of the child and the child's needs
The capacity and disposition of each parent to provide the child with food, clothing, medical care, and day-to-day needs
The mental and physical health of each parent
Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child
Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent
Any evidence of substance abuse by either parent

In addition, the court also considers the wishes of a child who is at least 11 but has not yet turned 14. Normally, a child who has reached the age of 14 has the right to select the parent with whom he or she wishes to live. The court also recognizes and approves agreements made by the parties themselves with regards to custody and visitation, where the parties are able to agree to custodial arrangements which fit the unique needs of the child and parties involved.

FDW attorney Emilia Walker has the experience and know-how to protect your relationship with your child and your child's best interests. You can contact her at 770.478.9950 or ewalker@fdwlaw.com.