Legitimation and Fathers' Rights in Georgia: A Conversation with Attorney Michelle De Los Santos

Unmarried fathers in Georgia often assume that by being present, paying support, or even confirming paternity with a DNA test is enough to secure their legal rights as a parent. It is NOT. Attorney Michelle De Los Santos sat down to walk through what Georgia law actually requires, why legitimation is the missing step so many fathers overlook, and what's at stake if it's never completed.

Courier: Many people believe that if a father is involved in a child's life, that alone gives him legal rights. Is that true in Georgia?

De Los Santos: No, and this is probably the single biggest misunderstanding I see. Involvement, love, even financial support — none of it creates legal rights on its own. Under Georgia law, an unmarried father has no legal right to custody, visitation, or decision-making authority over his child until he completes legitimation. A father can be at every doctor's appointment and every birthday party and still have zero standing in court if the relationship with the mother breaks down.

Courier: Can you explain what legitimation actually means under Georgia law?

De Los Santos: Legitimation is the legal process that transforms a man from a child's biological father into the child's legal father. In Georgia, that happens one of two ways: the parents sign a voluntary Acknowledgment of Legitimation before the child's first birthday, or — far more commonly — a father files a Petition for Legitimation in Superior Court under O.C.G.A. § 19-7-22. Once granted, legitimation gives the father the same legal rights and responsibilities he would have if he'd been married to the mother when the child was born. 

It is important to note, that by simply signing the Acknowledgment of Legitimation at birth, although the legal father, that still does not grant any visitation or parenting time rights to the Father. 

Courier: If two unmarried parents successfully co-parent and raise a child together, does the father automatically have legal rights to the child?

De Los Santos: No. I tell clients this constantly: a good co-parenting relationship is not a legal substitute for legitimation. The law does not care how well things are going today. Custody remains with the mother by default, full stop, regardless of how involved or cooperative the father is — unless and until a court order says otherwise.

Courier: What happens if a father never goes through the legitimation process?

De Los Santos: He's exposed. If the relationship with the mother sours, she can relocate, cut off contact, or deny visitation entirely, and he has no enforceable legal right to stop her. His child's inheritance rights can be at risk too. The biological relationship is real, but legally it's almost invisible until legitimation happens.

Courier: Is it true that in Georgia, an unmarried father has zero legal rights to his child until legitimation is completed?

De Los Santos: That's accurate when we're talking about custody, visitation, and parental decision-making. An unmarried father has no standing to ask a court for any of those things until he's legitimated. I want to be precise, though: he still owes a duty of support once paternity is established. For example, there are several fathers actively paying child support with the State, but still have no legal rights. The rights that most fathers actually care about — seeing their child, having a say in their upbringing — simply don't exist until legitimation is done.

Courier: What specific rights does legitimation provide for a father?

De Los Santos: Legitimation gives a father the right to seek custody and parenting time, the right to be heard and have input on major decisions affecting the child, the right to notice and consent before the child can be adopted by someone else, and inheritance rights between father and child. It also puts him on equal legal footing with the mother going forward, rather than starting every dispute from zero.

Courier: Does legitimation affect custody, visitation, and parenting time?

De Los Santos: Directly, yes. In fact, a father can ask the court to address custody and visitation in the very same legitimation petition. Once legitimation is granted, the court applies the same best-interest-of-the-child standard it would use for any other custody case. Before legitimation, none of that is on the table — he doesn't have the legal footing to even ask.

Courier: Many people confuse paternity with legitimation. What is the difference between establishing paternity through DNA testing and becoming the child's legal father through legitimation?

De Los Santos: Paternity tells you who the biological father is. Legitimation tells you what rights that father has. They're answering two completely different questions. A paternity determination — through a DNA test, a child support case, or an acknowledgment of paternity — creates a financial obligation. It does not create custody or visitation rights. Legitimation is the separate legal step that actually hands the father parental rights. I think of it as a two-step staircase: paternity first, legitimation second, and a lot of fathers stop on the first step thinking they've already arrived.

Courier: If DNA proves a man is the biological father, why doesn't that automatically give him legal rights?

De Los Santos: Because Georgia law deliberately treats those as two different legal questions with two different processes. A DNA test resolves a factual dispute — is this his child, biologically? It doesn't ask or answer whether he should have custody or visitation rights, and Georgia courts have been consistent that paternity alone doesn't confer those rights. Only a legitimation order, issued by a judge, does that.

Courier: Can a mother still receive child support from a father even if he has not legitimated the child?

De Los Santos: Yes, absolutely. Child support and legitimation are independent of each other. Once paternity is established — through DNA testing, an acknowledgment, or a court order — a support obligation attaches regardless of whether legitimation ever happens. I've had mothers assume the two are linked, and they're not. A father can be paying support every month and still have no legal right to see the child if he hasn't legitimated.

Courier: Is a DNA test mandatory in child support cases in Georgia?

De Los Santos: Genetic testing is treated as standard procedure in new child support cases where paternity hasn't already been established, and the Division of Child Support Services will move toward it as a matter of course. That said, "mandatory" doesn't mean a father has no say at all — he can contest paternity, and if both parents already agree on parentage, testing can sometimes be bypassed through a voluntary acknowledgment instead.

Courier: What happens if a man refuses to take a DNA test in a child support case?

De Los Santos: He's given several chances to comply before things escalate — typically a request by mail, then a court date if he doesn't respond, then a scheduled testing appointment with a review date built in. If he still doesn't show up for testing, the court can simply enter an order establishing paternity and the support obligation without the test ever happening. Refusing to cooperate doesn't make the case go away; it just removes his opportunity to be heard, and can expose him to contempt as well.

Courier: Why does Georgia law require legitimation to go through Superior Court and be signed by a judge?

De Los Santos: Because legitimation isn't a paperwork formality — it permanently changes a child's legal status, affecting custody, inheritance, can change the child’s last name, and the father's standing for the rest of the child's life. The law requires the mother to be named as a party so she has notice and a chance to respond, and it requires a judge to confirm the outcome serves the child's best interest. That judicial oversight is there to protect the child, not to make life harder for fathers.

Courier: Can fathers complete legitimation paperwork on their own without going to court?

De Los Santos: In one narrow circumstance, yes. If both parents agree and the child hasn't yet turned one, they can sign a voluntary Acknowledgment of Legitimation without going to court. Outside that window — or if the mother doesn't agree, or the father wants the court to also address custody or visitation — a Superior Court petition is required. So the DIY path exists, but it's the exception, not the rule, and it closes quickly.

Courier: What are some of the biggest misconceptions people have about fathers' rights and legitimation?

De Los Santos: A few come up again and again: that signing the birth certificate makes him the legal father, that paying child support earns him visitation rights, that a DNA test alone secures his parental rights, and that a strong, cooperative co-parenting relationship offers the same protection as a court order. None of that is true. The only thing that secures a father's legal rights in Georgia is a completed legitimation.

Courier: One important issue you mentioned involves inheritance. If a father dies before legitimation is completed, can the child lose inheritance rights?

De Los Santos: It's a real risk. Under Georgia law, a child born out of wedlock can't inherit from the father unless one of a few specific things is in place: a court order of legitimation or paternity, a sworn statement from the father acknowledging the child, his signature on the birth certificate, other clear and convincing evidence, or a filed genetic test showing at least a 97 percent probability of paternity. If none of that exists when the father dies, the child can be shut out of the estate entirely, even with a clear biological relationship.

Courier: Why is it important for unmarried fathers to understand that their child may not legally be considered an heir without legitimation?

De Los Santos: Because most fathers assume biology settles the question, and it doesn't. Without one of those recognized forms of proof in place, other relatives can inherit ahead of the child, and the child — or the mother on the child's behalf — may be left trying to prove paternity after the fact, which is far harder and far more expensive than handling it while the father is alive.

Courier: Have you seen situations where families were shocked to discover a child had no legal claim to a father's estate because legitimation was never completed?

De Los Santos: More than I'd like. It tends to surface in probate, after a father has passed away unexpectedly, when the family realizes there was never a court order, a signed acknowledgment, any formal documentation, or even a Will — just an assumed relationship everyone took for granted. At that point, the family is often fighting an uphill battle to establish what should have been settled years earlier, sometimes against other relatives who stand to inherit if the child is excluded.

Courier: What advice would you give unmarried fathers who want to protect both their relationship with their child and the child's future legal rights?

De Los Santos: Don't let a good relationship lull you into skipping the legal step. Complete legitimation as early as possible — through the voluntary acknowledgment if you're inside that first-year window and the mother agrees, or through a Superior Court petition if you're not. Keep documentation along the way: signed acknowledgments, the birth certificate, records of support and involvement. And talk to a family law attorney early, especially if there's any uncertainty in your relationship with the mother, rather than waiting until there's a dispute or an emergency. Also, keep in mind that that even if you Legitimate the child at birth with the Acknowledgment, you still need a separate court order addressing custody and visitation. 

Courier: What is the first step a father should take if he wants to begin the legitimation process in Georgia?

De Los Santos: First, find out if you're still inside that window where a voluntary Acknowledgment of Legitimation is possible — that requires the child to be under one year old and both parents to agree. If that's not available to you, the next step is filing a Petition for Legitimation in the Superior Court of the county where the child or mother lives, naming the mother as a party. If custody or visitation is also a concern, that request can go in the same petition. Additionally, if the child does not have the Father’s last name, the petition to legitimate is where a Father can request changing the child’s last name. Either way, talking to a family law attorney before you file is the best way to make sure it's done properly the first time.

This Q&A is intended for general informational purposes and does not constitute legal advice. Every family's situation is different — if you have questions about your own legitimation, custody, or inheritance matter, contact Attorney Michelle De Los Santos to discuss your specific circumstances.