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Legitimation of Children in Georgia – 2020 Georgia Case Law Update


When a child is born to unwed parents in Georgia, the biological father must file a petition for paternity and have paternity established to be acknowledged as the child’s legal father and allow a court to enforce his duty to financially support his child. However, this is not the only step in the process of establishing full rights and recognition as a parent. In order to completely claim legal parentage of a child, the father must file a petition for legitimation. Legitimation is necessary for the father to be able to petition a court for custody of the child or visitation with the child. Beyond granting the father the ability to parent the child on a regular basis, legitimation gives the father the right to inherit from the child if the child passes away. It also affords the child basic rights, including the right to inherit from his father, the right to obtain medical history from his father’s family, and the right to be placed in the home of a paternal relative if the child’s mother becomes unable to care for the child.

The process of legitimizing a child can be relatively easy when the child’s mother is not married to the biological father or to anyone else. However, there are rarer cases in which a mother is married to one man but gives birth to a child with a different biological father as a result of an extramarital affair. In Georgia as in other states, a married mother’s husband is legally the father of any child born to her, and a biological father faces an uphill battle in claiming paternity and having a petition for legitimation granted. And no matter what, whether the child’s mother is unmarried or married, even if paternity is established, no biological father has a guaranteed right to have a petition for legitimation granted. Courts will look at whether granting a legitimation petition would be in the child’s best interest, and whether the biological father made an effort to develop a relationship with his child or support him or her financially. In every case, a court must weigh each of these factors.

In May 2020, the Georgia Supreme Court affirmed the understanding that if a biological father abandons his “opportunity and interest” in legitimation by failing to support the child’s mother financially and emotionally during pregnancy or establish a relationship with the child after birth, his petition for legitimation may be legally denied. In Mathenia v. Brumbelow, Jeannie Mathenia, a married woman, gave birth to a child fathered by Joshua Brumbelow during a one-night encounter. Mr. Brumbelow doubted whether the child was biologically his, and attended only one doctor’s appointment during the pregnancy, for the purpose of calculating the date of conception to decide whether he could have fathered the child. Mr. Brumbelow did not offer any financial support to Ms. Mathenia and instead offered to pay for her to have an abortion.

Ms. Mathenia decided to remain married to her husband and to place the child for adoption. The child was placed into the care of its adopted parents immediately after birth and remained in their care. Mr. Brumbelow filed a petition for legitimation about six weeks after the birth, but only requested to actually visit with the child in person through his attorney once, when the child was about five months old. The trial court that heard Mr. Brumbelow’s petition noted that Mr. Brumbelow was capable of offering financial support and failed to do so. He only attempted to make direct contact with the child one time, even though he could have done so earlier and more frequently. Moreover, he offered to pay for the child’s mother to have an abortion, which demonstrates that he did not want the opportunity to have a relationship with the child, as a relationship would not have been possible had the mother accepted.

Mr. Brumbelow appealed to the Court of Appeals, and the Supreme Court ultimately took the case. The Supreme Court agreed with the trial court’s determination that denying the petition for legitimation was in the child’s best interest, setting a standard that other prospective fathers can reasonably look to for guidance on what is required of a legitimate father and whether their own petitions might be granted. The Supreme Court chose not to answer the question this case leaves open, as to whether a legitimation petition should be granted or denied on the basis of the “best interests of the child” standard, or the mere “fit parent” standard. Despite this open question, prospective fathers might take away from this guidance that the best way to ensure a legitimation petition will be granted is to act as an involved and responsible parent and in the child’s best interest, and also by offering both mother and child financial and emotional support.

When you have children, the most important thing for you and them both is to ensure that your relationship is on solid footing. To seek help with paternity or legitimation questions, calling on an experienced family lawyer is highly suggested. The Atlanta legitimation and paternity lawyers at Buckhead Family Law will work with you to ensure that the most appropriate outcome is within reach. To schedule an appointment, call our office today at 404-600-1403.

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