Legitimation: A Stumbling Block for Fathers

One of the great myths concerning child custody is that a father’s name on a birth certificate always results in legal rights.  In fact, unless the parties are married at the time the child is born or after the child is born, a father’s name on a birth certificate means little other than “This is the guy we think might be the biological father.”  Many young fathers I counsel are surprised to learn that, after conceiving a child outside of marriage, they actually have no rights to the child, whatsoever.  Children born out of wedlock are viewed legally as having no legal father.  This means there are no rights of visitation, custody, or inheritance.  The recourse for fathers seeking to establish a legal relationship with their child is, most often, a legal process called legitimation.  Legitimation involves filing a lawsuit, proving paternity, and obtaining a court order establishing a legal link between a child and his father.

While there are some quick and inexpensive remedies that can avoid the legitimation process, fathers who delay too long after birth may lose these simpler solutions.  Not only is the legitimation process cumbersome, the result is limited only to establishing the legal link between father and child.  The law requires a separate legal action to establish custody, visitation, and child support.  Only if the Mother consents can all issues be resolved in one expensive legal proceeding instead of two.

Legitimation is an example of a legal concept that has not kept pace with the reality of families in Georgia.  Statitistics estimate that between 40-50% of children are born outside of marriage.  The term “legitimation” arises from “illegitimate,” which is how Georgia law defines a child born out of wedlock.  The legitimation process makes an illegitimate child “legitimate” — having both a legal father and mother.

While the process is cumbersome, Georgia legislators are right to be wary of making the assignment of fathers too simple.  The great fear of making legitimation too simple is that human error or design will create legal rights and obligations upon men who have no biological relationship to the child.  Put more simply, Georgia law wants to avoid the “deceived father” who believes a child to be his biologically but is not.  This is an important consideration, but it ignores an equally important legal and social concept: the rights of a father to his child and the rights of child to her father.

Fathers are equally important to children as mothers.  The social benefits of having an involved father are boundless, but research indicates that children with involved fathers are less likely to be sexually active at an early age and less likely to be juvenile offenders than children raised without fathers.  Fathers are critical factor in the raising of children, and in a state where the divorce rate and out-of-wedlock birth rate vacillate around 50%, the legislature and courts should make great efforts to encourage paternity and fatherhood among Georgia’s children.