Many unwed mothers welcome biological fathers’ physical, emotional, and economic participation in their children’s lives. Others – particularly in cases of abuse, addiction, or criminal behavior – seek to protect children from any contact with their fathers. When a biological father balks at his exclusion and seeks redress through legal proceedings, how can the mother defeat his efforts and protect her children?

Typically, an excluded biological father’s legal process will commence with the filing of a petition for legitimation. Legitimation grants a biological father formal judicial recognition of his parental status, rendering father and child capable of inheriting from each other and ordinarily obligating the father to pay child support.(1) Once a petition for legitimation has been granted, the biological father can obtain rights to visitation, parenting time, and custody with respect to his children.(2) In order to grant a petition for legitimation, a court first must determine whether the father has abandoned his opportunity interest to develop a relationship with a child. That opportunity interest has been described as follows:

"As our Supreme Court has found, a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity 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. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. It is an interest which can be abandoned by the unwed father if not timely pursued."(3)

“The factors which may support a finding of abandonment include, without limitation, 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.”(4) In analyzing whether the father has abandoned his opportunity interest, the appropriate question is not whether he could have done more to develop his relationship, but whether he did enough.(5) If a court finds that the father has abandoned his opportunity interest, such a finding alone suffices to deny the father’s legitimation petition.(6) Thus, the process of defeating a petition for legitimation begins by establishing that the father has abandoned his opportunity interest to develop a relationship with his child.

If a biological father has not abandoned his opportunity interest, a court may grant a petition for legitimation if the evidence shows either that the father is a fit parent or that legitimation is in the best interest of the child.(7)

A party challenging a biological father’s parental fitness must show by clear and convincing evidence that the parent is unfit.(8) The standards to apply in determining parental fitness have been identified as follows:

"In deciding parental unfitness, the trial court had to restrict its inquiry to the parent's present fitness; it could not rely on evidence of the parent's past unfitness or compare the parent's ability to raise the child with the superior fitness of a third person.

A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent's natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship."(9)

Accordingly, a mother opposing a petition for legitimation must concentrate her attacks on the father’s present unfitness as a parent, rather than focusing only on his prior conduct.

Finally, in order to demonstrate that legitimation will not serve a child’s best interests, a mother will need to address the benefits that might flow to the child if legitimated and to consider the legal consequences of the grant of the petition.(10) Some of the many statutorily recognized factors deemed relevant to determining a child’s best interests include: the extent to which the biological father has bonded with the child and previously participated in the child’s life; the father’s physical, emotional and economic capacity to love, educate and care for the child; the father’s physical and mental health; any prior family violence, sexual abuse, physical abuse, mental abuse, substance abuse, or criminal history of the father; and the child’s need for permanence, stability and continuity of relationships.(11) A mother should attempt to apply as many statutory factors as possible against legitimation, in order to persuade a court that legitimation will not serve a child’s best interests.

(1) O.C.G.A. §§ 19-7-1, 19-7-2, 19-7-22, 19-7-24, and 19-7-25.

(2) O.C.G.A. §19-7-22(g).

(3) Neill v. Brannon, 738 S.E.2d 724, 725 (Ga. App., 2013) (Citations omitted).

(4) Id., at 726; accord Matthews v. Dukes, 314 Ga. App. 782, 784, 726 S.E.2d 95 (2012), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380(3), 729 S.E.2d 393 (2012); and Brine v. Shipp, 291 Ga. 376, 380(3), 729 S.E.2d 393 (2012) (2012).

(5) Morris v. Morris, 309 Ga. App. 387, 389-390, 710 S.E.2d 601 (2011).

(6) Matthews v. Dukes, 314 Ga. App. at 784.

(7) O.C.G.A. § 19-7-22(d)(1); Neill v. Brannon, 738 S.E.2d at 729; Matthews v. Dukes, 314 Ga. App. at 784.

(8) Turner v. Wright, 217 Ga. App. 368, 370(2), 457 S.E.2d 575 (1995), citing In re Baby Girl Eason, 257 Ga. 292, 297, 358 S.E.2d 459 (1987).

(9) Clark v. Wade, 273 Ga. 587, 591, 544 S.E.2d 99 (2001).

(10) Ernst v. Snow, 305 Ga. App. 194(1), 699 S.E.2d 401 (2010).

(11) O.C.G.A. §§ 19-9-3(a)(3) and 15-11-26.

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