08 LC
28 3995S
House
Bill 158 (COMMITTEE SUBSTITUTE)
By:
Representatives Willard of the
49th,
Jacobs of the
80th,
Oliver of the
83rd,
Lane of the
167th,
and Everson of the
106th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 7 of Title 19 the Official Code of Georgia Annotated, relating to
parent and child relationship generally, so as to clarify methods of
legitimation of a child; to change provisions relating to petitions for
legitimation of a child; to provide the courts with the ability to order genetic
testing upon its own order; to change certain provisions relating to voluntary
acknowledgments of paternity; to amend Chapter 11 of Title 15, Chapter 8 of
Title 19, Code Section 29-2-15, and Chapter 2 of Title 53 of the Official Code
of Georgia Annotated, relating to juvenile proceedings, adoption, notice of
petition for appointment of permanent guardian, protest of father, and petition
to legitimate, and descent and distribution, respectively, so as to correct
cross-references; to provide for related matters; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
7 of Title 19 the Official Code of Georgia Annotated, relating to parent and
child relationship generally, is amended by adding a new Code section to read as
follows:
"19-7-21.1.
(a)
As used in this Code section, the term:
(1)
'Acknowledgment of legitimation' means a written statement contained in a
voluntary acknowledgment of paternity form indicating that a mother and father
of a child born out of wedlock have freely agreed and consented that the child
may be legitimated.
(2)
'Legal father' means a male who:
(A)
Has legally adopted a child;
(B)
Was married to the biological mother of that child at the time the child was
conceived or was born, unless such paternity was disproved by a final order
pursuant to Article 3 of this chapter;
(C)
Married the legal mother of the child after the child was born and recognized
the child as his own, unless such paternity was disproved by a final order
pursuant to Article 3 of this chapter;
(D)
Has been determined to be the father by a final paternity order pursuant to
Article 3 of this chapter;
(E)
Has legitimated the child by a final order pursuant to Code Section 19-7-22;
or
(F)
Has legitimated a child pursuant to this Code section
and
who has not surrendered or had terminated his rights to the child.
(b)
Prior to the child´s first birthday, a father of a child born out of
wedlock may render his relationship with the child legitimate when both the
mother and father have freely agreed, consented, and signed a voluntary
acknowledgment of paternity and an acknowledgment of legitimation which have
been made and have not been rescinded pursuant to Code Section 19-7-46.1. The
State Office of Vital Records shall provide notice, in writing, of the
alternatives to, legal consequences of, and the rights and responsibilities of
signing a voluntary acknowledgment of legitimation.
(c)
Voluntary acknowledgment of legitimation shall not be recognized
if:
(1)
The mother was married to another man when the child was born;
(2)
The mother was married to another man at any time within the usual period of
gestation;
(3)
There is another legal father;
(4)
The mother has voluntarily and in writing surrendered all of her parental rights
pursuant to the provisions of subsection (a) of any of Code Section 19-8-4,
19-8-5, 19-8-6, or 19-8-7 and has not withdrawn her surrender as permitted by
the provisions of subsection (b) of Code Section 19-8-9 or the mother´s
parental rights have been judicially terminated by a court of competent
jurisdiction or an action to terminate such rights has been initiated and is
pending;
(5)
The mother has signed a voluntary acknowledgment of legitimation with another
man; or
(6)
The child is one year of age or older.
(d)
If any of the circumstances described in subsection (c) of this Code section
exists, the provisions of Code Section 19-7-22 shall be the only method of
legitimation.
(e)
Voluntary acknowledgment of legitimation shall not authorize the father to
receive custody or visitation until there is a judicial determination of custody
or visitation.
(f)
It shall be unlawful to make a false statement on a voluntary acknowledgment of
legitimation, and the making of a false statement shall be punishable as an act
of false statements and writings under Code Section 16-10-20.
(g)
Where a voluntary acknowledgment of paternity is timely rescinded and includes a
voluntary acknowledgment of legitimation, the legitimation shall also be deemed
rescinded."
SECTION
2.
Said
chapter is further amended by revising Code Section 19-7-22, relating to
petition for legitimation of child, as follows:
"19-7-22.
(a)
A father of a child born out of wedlock may render his relationship with the
child legitimate by petitioning the superior court of the county of the
residence of the child´s mother or other party having legal custody or
guardianship of the child; provided, however, that if the mother or other party
having legal custody or guardianship of the child resides outside the state or
cannot, after due diligence, be found within the state, the petition may be
filed in the county of the father´s residence or the county of the
child´s residence. If a petition for the adoption of the child is pending,
the father shall file the petition for legitimation in the county in which the
adoption petition is filed.
(b)
The petition shall set forth the name, age, and sex of the child, the name of
the mother, and, if the father desires the name of the child to be changed, the
new name. If the mother is alive, she shall be named as a party and shall be
served and provided an opportunity to be heard as in other civil actions under
Chapter 11 of Title 9, the 'Georgia Civil Practice Act.'
If there is a
legal father, as such term is defined in Code Section 19-7-21.1, he shall be
named as a party and shall be served and provided an opportunity to be heard as
in other civil actions under Chapter 11 of Title 9, the 'Georgia Civil Practice
Act.'
(c)
Upon the presentation and filing of the petition,
and after a
hearing, the court may pass an order
declaring the father´s relationship with the child to be legitimate,
provided that
such is in the best interest of the child
and that the father and child shall be capable of inheriting from each other in
the same manner as if born in lawful wedlock and specifying the name by which
the child shall be known.
(d)
A legitimation petition may be filed, pursuant to paragraph (2) of subsection
(e) of Code Section 15-11-28, in the juvenile court of the county in which a
deprivation proceeding regarding the child is pending.
Such petition
shall contain the same information and require the same notice as set forth in
subsection (b) of this Code section, and the juvenile court shall proceed in
accordance with subsection (c) of this Code section. After a petition for
legitimation has been granted, if a demand for jury trial as to matters of child
support has been properly filed by either parent, then the case shall be
transferred from the juvenile court to the superior court for such
determination.
(e)
Except as
provided by subsection (f) of this Code
section
when there is
a demand for a jury trial and the matter is transferred from juvenile court to
superior court, the court shall upon
notice to the mother further establish such duty as the father may have to
support the child, considering the facts and circumstances of the mother´s
obligation of support and the needs of the child as provided under Code Section
19-6-15.
(f)
After a
petition for legitimation is granted, if a demand for a jury trial as to support
has been properly filed by either parent, then the case shall be transferred
from juvenile court to superior court for such jury trial.
(f.1)
The petition for legitimation may also include claims for visitation, parenting
time, or custody. If such claims are raised in the legitimation action, the
court may order, in addition to legitimation, visitation, parenting time, or
custody based on the best interests of the child standard. In a case involving
allegations of family violence, the provisions of paragraph (4) of subsection
(a) of Code Section 19-9-3 shall also apply.
(g)(1)
In any petition to establish paternity pursuant to paragraph (4) of subsection
(a) of Code Section 19-7-43, the alleged father´s response may assert a
third-party action for the legitimation of the child born out of wedlock. Upon
the determination of paternity or if a voluntary acknowledgment of paternity has
been made and has not been rescinded pursuant to Code Section 19-7-46.1, the
court or trier of fact as a matter of law and pursuant to the provisions of Code
Section 19-7-51 may enter an order or decree legitimating a child born out of
wedlock, provided that such is in the best interest of the child. Whenever a
petition to establish the paternity of a child is brought by the Department of
Human Resources, issues of name change, visitation, and custody shall not be
determined by the court until such time as a separate petition is filed by one
of the parents or by the legal guardian of the child, in accordance with Code
Section 19-11-8; if the petition is brought by a party other than the Department
of Human Resources or if the alleged father seeks legitimation, the court may
determine issues of name change, visitation, and custody in accordance with
subsections (b) and
(f.1)
(f)
of this Code section. Custody of the child shall remain in the mother unless or
until a court order is entered addressing the issue of custody.
(2)
In any voluntary acknowledgment of paternity which has been made and has not
been rescinded pursuant to Code Section 19-7-46.1, when both the mother and
father freely agree and consent, the child may be legitimated by the inclusion
of a statement indicating a voluntary acknowledgment of
legitimation.
(h)
The court on its own motion may order or any party may make a motion for the
court to order the mother, the alleged father, and the child or children to
submit to genetic tests pursuant to the standards outlined in Code Section
19-7-45. Such motion shall be supported by a sworn statement (1) alleging
paternity and setting forth facts establishing a reasonable possibility of the
requisite sexual contact between the parties; or (2) denying paternity and
setting forth facts establishing a reasonable possibility of the nonexistence of
sexual contact between the parties. Appropriate orders shall be issued in
accordance with the provisions of this article. The court shall grant the
motion unless it finds good cause as defined by the federal Social Security Act
or if other good excuse for noncooperation is
established."
SECTION
3.
Said
chapter is further amended by revising Code Section 19-7-25, relating to in whom
parental power over child born out of wedlock lies, as follows:
"19-7-25.
Only
the mother of a child born out of wedlock is entitled to
his
custody of the
child, unless the father legitimates
him
the
child as provided in Code Section
19-7-21.1
or 19-7-22 . Otherwise, the mother may
exercise all parental power over the child."
SECTION
4.
Said
chapter is further amended in Code Section 19-7-43, relating to a petition to
establish paternity, procedure, and testing, by revising subsection (d) as
follows:
"(d)
In any case in which the paternity of a child or children has not been
established,
the court on
its own motion may order or any party may
make a motion for the court to order the mother, the alleged father, and the
child or children to submit to genetic tests as specified in Code Section
19-7-45. Such motion shall be supported by a sworn statement (1) alleging
paternity and setting forth facts establishing a reasonable possibility of the
requisite sexual contact between the parties; or (2) denying paternity and
setting forth facts establishing a reasonable possibility of the nonexistence of
sexual contact between the parties. Appropriate orders shall be issued in
accordance with the provisions of this article. The court shall grant the
motion unless it finds good cause as defined by the federal Social Security Act
or if other good excuse for noncooperation is established."
SECTION
5.
Said
chapter is further amended in Code Section 19-7-46.1, relating to voluntary
acknowledgments of paternity and other evidence of paternity, by revising
subsection (b) as follows:
"(b)
When both the mother and father have signed a voluntary acknowledgment of
paternity and the acknowledgment is recorded in the putative father registry
established by subsection (d) of Code Section 19-11-9, the acknowledgment shall
constitute a legal determination of paternity, subject to the right of any
signatory to rescind the acknowledgment prior to the date of the support order,
any other order adjudicating paternity, or 60 days from the signing of the
agreement, whichever is earlier. Recording such information in the putative
father registry shall constitute a legal determination of paternity for purposes
of establishing a future order for support, visitation privileges, and other
matters under Code Section 19-7-51.
Acknowledgment
of paternity shall not constitute a legal determination of legitimation pursuant
to Code Section 19-7-21.1 or
19-7-22."
SECTION
6.
Chapter
11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile
proceedings, is amended in Code Section 15-11-2, relating to definitions, by
revising paragraph (10.1) as follows:
"(10.1)
'Legal father' means a male who:
(A)
Has legally adopted a child;
(B)
Was married to the biological mother of that child at the time the child was
conceived or was born, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of Title 19;
(C)
Married the legal mother of the child after the child was born and recognized
the child as his own, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of Title 19;
(D)
Has been determined to be the father by a final paternity order pursuant to
Article 3 of Chapter 7 of Title 19; or
(D)(E)
Has legitimated the child by a final order pursuant to Code Section
19-7-22;
or
(E)
Has legitimated a child pursuant to Code Section 19-7-21.1
and
who has not surrendered or had terminated his rights to the
child."
SECTION
7.
Said
chapter is further amended in Code Section 15-11-96, relating to the summons for
a petition to terminate parental rights and the rights of biological fathers, by
revising subsection (h) as follows:
"(h)
When notice is given pursuant to subsection (e) of this Code section, it shall
advise such biological father who is not the legal father that he loses all
rights to the child and will not be entitled to object to the termination of his
rights to the child unless, within 30 days of receipt of such notice, he
files:
(1)
A petition to legitimate the child pursuant to Code Section 19-7-22
or an
acknowledgment of legitimation pursuant to Code Section
19-7-21.1; and
(2)
Notice of the filing of the petition to legitimate
or
acknowledgment of legitimation with the
court in which the action under this Code section is pending."
SECTION
8.
Chapter
8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption,
is amended in Code Section 19-8-1, relating to definitions, by revising
paragraph (6) as follows:
"(6)
'Legal father' means a male who:
(A)
Has legally adopted a child;
(B)
Was married to the biological mother of that child at the time the child was
conceived or was born, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of this title;
(C)
Married the legal mother of the child after the child was born and recognized
the child as his own, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of this title;
(D)
Has been determined to be the father by a final paternity order pursuant to
Article 3 of Chapter 7 of this title; or
(D)(E)
Has legitimated the child by a final order pursuant to Code Section
19-7-22,;
or
(E)
Has legitimated the child pursuant to Code Section 19-7-21.1
and
who has not surrendered or had terminated his rights to the
child."
SECTION
9.
Said
chapter is further amended in Code Section 19-8-12, relating to notice of
adoption proceedings to the biological father and procedure related thereto, by
revising subsection (e) as follows:
"(e)
When notice is to be given pursuant to subsection (b) of this Code section, it
shall advise such biological father who is not the legal father that he loses
all rights to the child and will neither receive notice nor be entitled to
object to the adoption of the child unless, within 30 days of receipt of such
notice, he files:
(1)
A petition to legitimate the child pursuant to Code Section 19-7-22
or an
acknowledgment of legitimation pursuant to Code Section
19-7-21.1; and
(2)
Notice of the filing of the petition to legitimate
or
acknowledgment of legitimation with the
court in which the action under this Code section, if any, is pending and to the
person who provided such notice to such biological father."
SECTION
10.
Code
Section 29-2-15 of the Official Code of Georgia Annotated, relating to the
notice of petition for appointment of permanent guardian, protest of father, and
petition to legitimate, is amended by revising subsection (c) as
follows:
"(c)
If the biological father files a timely objection to the petition, the court
shall hear the objection and, if the biological father makes a request, shall
continue the hearing for 30 days to allow the father to file a petition to
legitimate the minor pursuant to Code Section 19-7-22
or an
acknowledgment of legitimation pursuant to Code Section
19-7-21.1. If the biological
father´s petition for legitimation of the minor is granted
or if an
acknowledgment of legitimation has been
filed, the petition for the appointment of
a permanent guardian for the minor shall be dismissed."
SECTION
11.
Chapter
2 of Title 53 of the Official Code of Georgia Annotated, relating to descent and
distribution, is amended in Code Section 53-2-3, relating to inheritance by
children born out of wedlock, by revising subparagraph (A) of paragraph (2) as
follows:
"(2)(A)
A child born out of wedlock may not inherit from or through the child´s
father, the other children of the father, or any paternal kin by reason of the
paternal kinship, unless:
(i)
A court of competent jurisdiction has entered an order declaring the child to be
legitimate, under the authority of Code Section 19-7-22 or such other authority
as may be provided by law;
(ii)
A court of competent jurisdiction has otherwise entered a court order
establishing paternity;
(iii)
The father has executed a sworn statement signed by him attesting to the
parent-child relationship;
(iv)
The father has signed the birth certificate of the child;
or
(v)
The father has
declared the child to be legitimate pursuant to Code Section 19-7-21.1;
or
(vi)
There is other clear and convincing evidence that the child is the child of the
father."
SECTION
12.
Said
chapter is further amended in Code Section 53-2-4, relating to inheritance from
children born out of wedlock, by revising subsection (b) as
follows:
"(b)
The father of a child born out of wedlock, the other children of the father, and
other paternal kin may inherit from and through the child born out of wedlock in
the same manner as if the child were legitimate if:
(1)
A court of competent jurisdiction has entered an order declaring the child to be
legitimate under the authority of Code Section 19-7-22 or such other authority
as may be provided by law;
(2)
A court of competent jurisdiction has otherwise entered a court order
establishing paternity;
(3)
The father has, during the lifetime of the child, executed a sworn statement
signed by the father attesting to the parent-child relationship;
(4)
The father has, during the lifetime of the child, signed the birth certificate
of the child;
or
(5)
The presumption of paternity described in division (2)(B)(ii) of Code Section
53-2-3 has been established and has not been rebutted by clear and convincing
evidence;
or
(6)
The father has declared the child to be legitimate pursuant to Code Section
19-7-21.1."
SECTION
13.
All
laws and parts of laws in conflict with this Act are repealed.