Can I Assert My Rights Before My Child Is Born?

One of the things a man might ask is whether they can assert their rights to a child before the child is born.  The short answer to this question is yes.  

When a child is born out of wedlock, the child is not considered to be legitimate.  This means that the Father has no rights to the child until he seeks and is granted legitimization.  O.C.G.A. §§ 19-7-25 and 19-7-22.  This means that Mother may exercise all parental power over the child.  

This is not a problem if the Father is lawfully wedded to the Mother and the child is born in wedlock or within the usual period of gestation thereafter.  O.C.G.A. § 19-7-20.  In that circumstance, a Father need not seek legitimization, it is presumed.  

However, what happens when you have a situation where you think you may be the Father and the child is not born yet?  You may want to sign your name to the birth certificate, but cannot be sure if the child is yours.  You may already expect that Mother will not want to share custody of your child.  You may already expect that she might not be heard from again after the child is born.  

The Mother can always seek paternity and the imposition of child support while not allowing visitation.  To avoid this, you need to know your rights and seek proper legal relief before the situation becomes more difficult or expensive to handle.  

There are two grounds to seek paternity or legitimization before the birth of the child.  There is no law that precludes you seeking this relief and having to wait until the child is born.  Under O.C.G.A. 19-7-43, you can file a Petition for Paternity before the child is born, however, the case will be on hold until the child is born.  You can still legally file the Petition and seek service of process, take depositions, and conduct discovery to answer the questions about the future.  This has the effect of having the case pending and quickly move into genetic testing to determine paternity right after birth.  It also allows the minimization of any time away from your child if the other parent becomes difficult.  Often you can come to an agreement before the child is even born and enjoy a schedule for as long as it is feasible.  

You can also file a Petition for Legitimization under O.C.G.A. § 19-7-22, however there is no clear language in the statute that speaks to genetic testing before birth.  From a common sense perspective, the issue of paternity needs to be resolved before a Father seeks legitimization of a child.  However, there has been case law to suggest that a Father can proceed forward to legitimization and expand or abandon the claim if the child is not his.  If the child is his, he can simply proceed to legitimize the child and avoid having to file a separate action.  

Science has evolved to the point where doctors can do non-invasive genetic testing with a simple blood sample from mother and cheek swab from the Father.  This can be done as early as seven weeks into a pregnancy and it is allegedly 99% accurate as to the question of paternity.  

If you want to learn more, come back next week for another blog entry.  

Call today to speak to Kenny Leigh & Associates about your rights.  Men Only, Family Law Only.

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