Category Archives: Paternity / Legitimation

Trial court’s attempt to change order on legitimation petition not authorized under Georgia Law.

Trial court’s attempt to change order on legitimation petition from dismissal with prejudice to dismissal without prejudice, REVERSED; changing order in subsequent term of court from dismissal with prejudice to dismissal without prejudice was not clerical error but substantive change not authorized under Georgia law.

Ivery v. Brown, A10A2298 (02/07/2011)

From:  Fulton County Daily Report, February 25, 2011.

Denial of legal father’s motion to intervene in biological father’s legitimation action, REVERSED, as legal father had interest in action.

Denial of legal father’s motion to intervene in biological father’s legitimation action, REVERSED, as legal father had interest in action; ‘ “[t]here can be no doubt that a man married to a woman at the time of conception or birth is a party at interest when another man claims fatherhood of the child in a legitimation proceeding”‘ ‘ and, since legal father filed his motion to intervene before final judgment was entered, his rights were not protected by another party, and his interest as child’s legal father would be impaired by unfavorable decision; judgment granting biological father’s legitimation peitition, vacated, and case remanded for consideration of legal father’s motion to dismiss.

Baker v. Lankford, A10A1211 (10/05/2010), 10 FCDR 3281

From:  Fulton County Daily Report, October 22, 2010.

GA trial judge abused his discretion in granting father custody without allowing mother adequate opportunity to respond or prepare for hearing on custody.

Order granting custody to biological father, REVERSED, since trial judge abused his discretion in granting father custody without allowing mother adequate opportunity to respond or prepare for hearing on issue of custody; father filed legitimation peittion shortly after child was born, four days prior to hearing on legitimation peittion, father filed amended petition requesting that trial court determine custody, trial court awarded joint legal custody to both mother and father, but named father as primary custodian and record showed that father’s general prayer for relief did not put mother on notice that he was asking trial court to determine custody at legitimation hearing; mother’s failure to answer original legitimation petition did not waive her right to respond to issue of custody; O.C.G.A. § 9-11-15 (a) states that party is generally entitled to 15 days to respond to amendment, mother was not allowed 15 days, and in fact, was given less than two business-day’s notice, therefore, she did not have reasonable opportunity to respond to amended peittion with such little notice given to mother, there was no assurance that trial judge gave proper consideration to child’s best interest.

Sherrington v. Holmes, A10A1066 (09/30/10), 10 FCDR 3224

From:  Fulton County Daily Report, 10/15/2010

Judgment granting appellee’s petition for legitimation and awarding temporary custody of appellant’s child, first to appellee, then to appellee’s parents and then to appellee again, VACATED.

Judgment granting appellee’s petition for legitimation and awarding temporary custody of appellant’s child, first to appellee, then to appellee’s parents and then to appellee again, VACATED; trial court erred in granting appellee’s petition to legitimate, since no evidence was presented regarding issues necessary for determination of whether to grant legitimation at May 29, 2008, 30 Day Conference on appellee’s petition; for same reason, trial court erred in granting appellee’s petition for temporary custody, since only mother is entitled to custody of child, until legitimation is properly entered; no authority grants legitimation by default; case remanded with direction for proceedings consistent with this opinion.

Ernst v. Snow, A10A0602 (07/13/10), 10 FCDR 2452

From:  Fulton County Daily Report, 07/30/2010.

A GA father’s constant payment of financial support, coupled with his avowed interest in establishing a relationship with child, mitigated against finding of abandonment.

Denial of father’s petition to legitimate his child, REVERSED; though he did not contact child after August 2004, father’s constant payment of financial support, coupled with his avowed interest in establishing and maintaining relationship with child, mitigated against finding of abandonment; case remanded for trial court to determine whether legitimation is in child’s best interest.

Binns v. Fairnot, A08A0207 (06/27/08), 08 FCDR 2317

From:  Fulton County Daily Report, 07/18/2008.

GA trial court erred in ruling Appellant was estopped from denying obligation to support appellee’s minor child, who was not appellant’s biological or adopted child.

Judgment in parties’ divorce case, REVERSED, as trial court erred in ruling that appellant was estopped from denying obligation to support appellee’s minor child, who was not appellant’s biological or adopted child; although appellant signed application to amend child’s birth certificate to list him as her father and give her his name and he allegedly promised to take care of her and be her father, there was no evidence that his promise caused appellee to forego valuable legal right to her detriment; appellant identified child’s biological father, acknowledged that child was aware of his identity and stated that she never sought support, because he did not want anything to do with child.

GA order denying father’s petition to legitimate minor and terminating father’s parental rights AFFIRMED

Order denying father’s petition to legitimate minor and terminating father’s parental rights AFFIRMED, as trial court did not err in denying father’s legitimation petition; father abandoned his opportunity interest to develop relationship with minor, since father did not spend any significant time with minor, after living with minor for one year, and did not pay child support or send cards or letters to minor; father’s argument that trial court wrongfully denied right to counsel during termination of parental rights hearing, REJECTED, because he lacked standing to challenge termination of his rights; father’s contention that juvenile court lacked subject matter jurisdiction, REJECTED, because juvenile court has original jurisdiction unless termination petition is filed in connection with formal adoption proceedings.

In the Interest of J.S., A10A0186 (02/12/2010), 10 FCDR 413.

From:  Fulton County Daily Report, 2/26/2010.

GA denial of mother’s pretrial motion to compel paternity testing of her child’s legal father, AFFIRMED

Denial of mother’s pretrial motion to compel paternity testing of her child’s legal father, AFFIRMED;  although mother was not precluded from contesting paternity, trial court did not err in denying mother’s motion, because law favors legitimacy and mother failed to make threshold showing that delegitimation was in child’s best interest.

Williamson v. Williamson, A09A1767 (01/26/2010), 10 FCDR 274.

From:  Fulton County Daily Report, 2/12/2010.