Thursday, September 2, 2010

Custody Of A Child Born Out OF Wedlock

I frequently get calls from parents asking me what rights they have in regard to custody and or visitation of their child , which was born out of wedlock. Even police officers are often confused or just plan wrong in their understanding of this issue, and often tell a mother that the father has a right to custody or visitation which she can not deny.

The mother of a child born out of wedlock has the right to custody and possession of the child. This is clearly stated in Georgia Code section OCGA 19-7-25. She is the only recognized parent and therefore exercises all the parental power. She is entitled to custody, as a matter of law, against the biological father who is not the legal father. The biological father does not even have the right to visit the child absent the mothers approval.

The biological father of a child born out of wedlock may legitimate the child, and then he has a equal claim to parental and custodial rights to the child. In such a case, the court would determine custody and or visitation based upon the best interest of the child standard.

If a father fails to legitimate a child, he has no standing with reference to custody of the child. After the biological father has legitimated a child, in a contest for custody between him and third parties he will usually prevail, unless the third party shows by clear and convincing evidence that the father is unfit.

In some circumstances a third party may be awarded custody by showing by clear and convincing evidence that parental custody would harm the child, and that an award of custody to the third party would be in the best interest of the child.

In a contest between a “biological” father who has not legitimated the child and a “legal” father who has legitimated the child, the court would determine custody based upon the best interests of the child standard.

Once a legitimation petition is granted, the “original legal” father who was married to the child's mother at birth would no longer be the “legal father,” and he would have no standing to seek custody or even visitation.


  1. Hi Tony,

    Can you please let me know if you mean establishing paternity when you mention legitimating the child?


  2. What if they are paying child support & the child hasn't been legitimized? He was required by Child Support Recovery to pay child support & the mother was living with him at the time.