What is a "legitimation"?
Legitimation is a legal action which is the only way, other than by marrying the mother of a child, that the father of a child born in the State of Georgia may establish legal rights to his child.
Who may file for legitimation?
Only the father of a child may file a petition seeking to legitimate his child.
What is the legal effect of legitimation?
An order of legitimation creates a father and child relationship legally between the petitioner and his child. An order of legitimation establishes that the child may inherit from this legal father and vice versa. An order of legitimation allows the legal father to be listed on the child’s birth certificate as such. An order of legitimation is the only way that the father of a child born out of wedlock can be recognized as the legal father of a child and therefore can petition for custody and/or visitation with this child.
If custody is to be an issue, you must still file your legitimation first, and get the Order of Legitimation signed. Once your child has been legitimated by the Court Order then you may file another action for custody. The exception to this rule is if the mother is deceased, there is no other legal parent or guardian, or the mother consents to custody. If you are already listed on the child’s birth certificate as the father, but you and the child’s mother were not married to each other, you must still file a petition with the court to legitimate your child.
Where should the petition be filed?
The Petition for Legitimation may be filed in the father’s county of residence, the child’s county of residence, or if there is an adoption pending, in the county where the adoption was filed. If custody is requested, and you want to use these forms, the mother must consent, and the Petition to Legitimate must be filed in her county of residence. An exception to this rule occurs when the mother consents and waives jurisdiction (that is, she states in a notarized written statement that it is fine to file your case in your county of residence). A second exception is if the mother of the child is deceased and there is no other legal custodian or guardian of the child.
How much does it cost to file for legitimation?
The basic filing fee is $65.00. If the mother has not signed a consent and/or waiver of jurisdiction form, she will need to be served with the petition by the sheriff–this costs $25.00 for each address to which the sheriff has to go if you are in the State of Georgia. If you are out of the state and want the sheriff to serve the mother, the cost is $28.00. ["Service" is an official way to give notice to the mother, and other people involved with your case, that you have filed your case and that they have the opportunity to then file a response with the court.] If the mother has left the child with you and you do not know her address and you have tried but cannot find her, then you will have to serve her with the Petition by Publication. This means that the petition is written up and then published in the official county newspaper for the county in which you knew she last lived. This costs at least $80.00.
If the mother was married to someone else when your child was born, or she has listed someone else on your child’s birth certificate as the Father of the child you will also have to pay $25.00 (if you are in the state of Georgia) or $28.00 (if you are out of the state) to have the Sheriff serve that person with a copy of the Petition. If you don’t know where that person lives, he will also have to be served by Publication.
What can I do if I don’t have the money to pay these fees?
If you do not have the money to pay your filing fees and sheriff’s fees, then you may ask the Court to allow you to file free of charge. This is called a Poverty Affidavit. Ask the Family Law Information Center staff for a copy of the form.
You must make a written statement to the court about your monthly income and monthly expenses, and why it would be a hardship for you to have to pay the filing fees. The court will then let you know by a written order that you may file your case without having to pay.
The county newspapers will not usually waive their fees so you will still have to pay for publication if it is necessary.
How long will all of this take?
The length of time depends on the facts of your case. There are several options for what can happen with your case:
- If custody is not an issue, and there is no other father listed on the birth certificate, then an Order for Legitimation can be heard by a Judge on the same day that you file it, and you may get your Order for Legitimation signed on the same day.
- If the mother or another father listed on the birth certificate must be served by publication, then the hearing cannot take place until after the publication is finished (60 days).
- If the mother or another father must be served by the sheriff with the Petition to Legitimate, then the case will be placed on a Judge’s calendar by his/her case manager.
- If custody is to be an issue, then you still file your legitimation first, and get the Order of Legitimation signed. Once your child has been legitimated by the Court then you may file another action for custody.