Legitimation: How an Unmarried Father Gets Custody Rights in Georgia

Why legitimation matters

Under O.C.G.A. § 19-7-25, only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child under § 19-7-22. Otherwise, the mother may exercise all parental power over the child.

A child born out of wedlock becomes legitimate in either of two ways:

• Marriage and recognition. The marriage of the mother and the reputed father, with the father’s recognition of the child as his, renders the child legitimate (§ 19-7-20(c)).
• A court order. The biological father petitions the superior court under § 19-7-22, or asserts legitimation in a paternity case (§ 19-7-22(h)).

Who files and where

The biological father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court (§ 19-7-22(b)). The petition is filed in:

• The county where the child’s mother, or other party with legal custody or guardianship of the child, resides; or
• If that person lives outside Georgia or cannot, after due diligence, be found in Georgia, the county where the father lives or the county where the child lives; or
• If a petition to adopt the child is pending, the county where the adoption petition is filed.

A legitimation petition may also be filed in the juvenile court of the county where a dependency proceeding about the child is pending, with the same contents, service, and opportunity to be heard (§ 19-7-22(e)).

What the petition says and who is a party

Under § 19-7-22(c), the petition must state:

• The child’s name, age, and sex;
• The mother’s name; and
• If the father wants the child’s name changed, the new name.

If the mother is alive, she must be named as a party, served, and given an opportunity to be heard as in other civil actions under the Georgia Civil Practice Act. If there is a legal father who is not the biological father, he must also be named as a party and served. A legal father includes a man who was married to the mother when the child was born or within the usual period of gestation, unless paternity was disproved by a final order, and a man who adopted the child (§ 19-7-22(a)(2)).

Custody, visitation, or parenting time claims can be included in the same petition (§ 19-7-22(g)). If they are, a parenting plan is generally required as in other custody cases (§ 19-9-1(a)). See the parenting plan guide.

What the court decides

1. Legitimation. After a hearing with notice to all interested parties, the court may issue an order declaring the father’s relationship with the child legitimate, provided the order is in the child’s best interests. The order specifies the name by which the child will be known, and the father and child can then inherit from each other as if the child were born in wedlock (§ 19-7-22(d)(1)).
2. Custody and parenting time. If those claims are raised, the court may order visitation, parenting time, or custody based on the best interests of the child. Where family violence is alleged, the family violence provisions of § 19-9-3(a)(4) also apply (§ 19-7-22(g)).
3. Child support. After notice and hearing, the superior court enters an order establishing the obligation to support the child under the child support guidelines in § 19-6-15 (§ 19-7-22(f)).

If the court determines by clear and convincing evidence that the father caused the child to be conceived through nonconsensual sexual intercourse with the mother, or an equivalent offense, or when the mother is less than ten years of age, there is a presumption against legitimation (§ 19-7-22(d)(2)(A)).

Legitimation inside a paternity case

In a petition to establish paternity, the alleged biological father may respond with a third-party action for legitimation if he is, in fact, the biological father. Once paternity is determined, or if a voluntary acknowledgment of paternity has been made and not rescinded, the court may legitimate the child if that is in the child’s best interests and may order genetic testing (§ 19-7-22(h)).

When the Department of Human Services brings the paternity petition, name change, visitation, and custody are not decided until one of the parents or the child’s legal guardian files a separate petition. Custody of the child remains with the mother unless or until a court order addresses custody (§ 19-7-22(h)).

Help from the courts

The Administrative Office of the Courts publishes a legitimation FAQ and terms sheet (January 2025 version). Check the statute and your county’s superior court for current requirements before relying on any summary, including this one.

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• O.C.G.A. § 19-7-22, petition for legitimation
• O.C.G.A. § 19-7-25, custody of a child born out of wedlock
• O.C.G.A. § 19-7-20, legitimacy and legitimation by marriage
• O.C.G.A. § 19-9-1, parenting plans
• O.C.G.A. § 19-9-3, best interests and family violence
• O.C.G.A. § 19-6-15, child support guidelines
• AOC, Petition for Legitimation Packet FAQs (January 2025)