ALL YOU NEED TO KNOW ABOUT 'S IN GEORGIA

1 ALL YOU NEED TO KNOW ABOUT FATHER'S RIGHTS IN GEORGIA

Contents

ABOUT THE AUTHOR ...... 4 PUTATIVE ...... 5 WHAT IS A PUTITATIVE FATHER? ...... 5 RIGHTS OF A PUTATIVE FATHER: ...... 5 GEORGIA PUTATIVE FATHER REGISTRY ...... 6 WHAT IS THE GEORGIA PUTATIVE FATHER REGISTRY ...... 6 WHEN IS A MAN'S NAME TYPICALLY LISTED ON THE PUTATIVE FATHER REGISTRY? ...... 6 WHAT YOU SHOULD KNOW: ...... 7 PATERNITY ...... 8 WHAT IS PATERNITY? ...... 8 HOW TO LEAGALLY ESTABLISH PATERNITY: ...... 8 YOU SHOULD KNOW THIS: ...... 9 PATERNITY ACKNOWLEDGEMENT ...... 9 WHAT YOU SHOULD KNOW ABOUT A PATERNITY ACKNOWLEDGMENT: ...... 9 PETITION TO ESTABLISH PATERNITY ...... 11 WHO MAY FILE A PETITION TO ESTABLISH PATERNITY: ...... 11 YOU SHOULD KNOW: ...... 11 PATERNITY ESTABLISHMENT THROUGH DEPARTMENT OF HUMAN SERVICES: ...... 11 LEGITIMATION ...... 12 WHAT IS LEGITIMATION? ...... 12 HOW CAN A FATHER LEGITIMATE A CHILD? ...... 12 PETITION FOR LEGITIMATION ...... 13 WHAT YOU SHOULD KNOW: ...... 13 ...... 14 PHYSICAL CUSTODY VS. LEAGAL CUSTODY ...... 15 WHAT IS PHYSICAL CUSTODY? ...... 15 WHAT IS LEGAL CUSTODY? ...... 15 CHILD CUSTODY FACTORS ...... 16 PREPARING FOR A CUSTODY CASE ...... 18 DOCUMENTATION: ...... 18 WITNESSES: ...... 18

2 ALL YOU NEED TO KNOW ABOUT FATHER'S RIGHTS IN GEORGIA

CO- TIPS ...... 19 ...... 20 WHAT IS ADOPTION? ...... 20 FOUR TYPES ...... 20 DADS AND ADOPTION ...... 21 WHAT HAPPENS WHEN A BIOLOGICAL FATHER HAS NOT LEGITIMATED THE CHILD BEING ADOPTED? ...... 21 SURRENDER OF PARENTAL RIGHTS (FOR LEGAL PARENTS) IS GENERALLY REQUIRED EXCEPT IN THE FOLLOWING CIRCUMSTANCES: ...... 21 RELATIVE & STEP-PARENT : ...... 21 BASICS ...... 22 WHAT YOU SHOULD KNOW: ...... 22 COMMON CHILD SUPPORT DEVIATIONS AND CREDITS ...... 23

3 ALL YOU NEED TO KNOW ABOUT FATHER'S RIGHTS IN GEORGIA

About the author

Cheryl D. Kelly, Esquire

Attorney Cheryl D. Kelly is the Owner of C. Kelly Law, LLC. She is dedicated to representing each client with legal expertise, compassion, and accuracy. As an attorney, Ms. Kelly has represented hundreds of clients in their most challenging legal matters involving law and personal injury law. She has extensive experience with helping clients navigate the financial aspects of , as well as child custody and child support. Ms. Kelly prides herself in helping her clients learn to become advocates in their own personal lives, as well as through the litigation process. She enjoys meeting and getting to know each client and learning how C. Kelly Law, LLC., can provide tailored services that will improve each client’s unique situation.

2625 Piedmont Road, NE, Suite 56476, Atlanta, Georgia 30324

website: https://win4ga.com

phone: 844-I-WIN4GA

4 ALL YOU NEED TO KNOW ABOUT FATHER'S RIGHTS IN GEORGIA

PUTATIVE FATHERS

WHAT is a putitative father?

A man that is assumed/presumed or held out to be the biological father of child, but has not established a legal relationship with the child through legitimation.

You are a PUTATIVE FATHER if you have not received a Legitimation Order or married the mother of your biological child.

RIGHTS OF A PUTATIVE FATHER:

A putative father is entitled to:

1. Notification Of Adoption And The Option To Be Involved In, Or To Contest The Adoption of his child. 2. File A Petition For Legitimation To Establish A Legal Relationship With The Child. 3. No Rights To Physical Custody, Legal Custody, Or Visitation. 4. No Rights To Inherit From The Child.

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Georgia Putative Father Registry WHAT is the Georgia Putative Father Registry

Statewide database maintained by Georgia Office of Vital Records, containing names, address and social security number of men that claim or are believed to be the biological father of a child or that have formally established paternity of a child (but not necessarily a legal relationship with the child).

PRIVACY: Information contained on the Putative Father Registry cannot be accessed by the general public. Access is usually limited to government agencies, adoption agencies, and lawyers.

WHEN IS A MAN'S NAME TYPICALLY LISTED ON THE PUTATIVE FATHER REGISTRY?

• When he and the biological mother complete, sign and submit a Paternity Acknowledgement to the Georgia Office of Vital Records • When he completes and submit a Putative Father Registration form • When he Legitimates the child by filling a legal auction or marrying the mother

https://dph.georgia.gov/sites/dph.georgia.gov/files/Putative%20Father%20Registration%20%28Form%203960%29.pdf

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WHAT YOU SHOULD KNOW:

• A man does not have to BE CERTAIN, but may only BELIEVE/SUSPECT that he is the biological father of a child to register. If there is a possibility that you are the biological father of a child, you may submit a Putative Father Registration form. • A man can register before a child is born if he has engaged in sexual intercourse with a woman to whom he is not married which could have resulted in the conception of a child. • When someone attempts to adopt the child of a registered putative father, the adopting party must search the Putative Father Registry, and notify each man listed as a putative father to the child he/she is adopting. • Registration with the Putative Father Registry is FREE. • A man can update/change his information on the Putative Father Registry for FREE. • A man can remove his name the Putative Father Registry if paternity is not established. • The Department of Humans Service uses the Putative Father Registry to locate fathers for the purpose of establishing child support. • Putative Father Registration forms can be found ONLINE at : dph.georgia.gov (Search PUTATIVE FATHER REGISTRY or see link on previous slide) at the State/County Office of Vital Records, or at Probate Court. • Putative Father Registration forms should be MAILED to: State Office of Vital Records, 1680 Phoenix Blvd, Suite 100, Atlanta, GA 30349 OR FAXED to: (770) 909-5381.

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PATERNITY

WHAT is paternity?

Legal acknowledgement that a man is the biological father of a child.

HOW TO leagally ESTABLISH PATERNITY:

1. Paternity is generally assumed if a man is married to a woman 2. Paternity Acknowledgemen 3. Petition to Establish Paternity 4. Paternity established through child support agency administrative process

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YOU SHOULD KNOW THIS:

Establishment of Paternity is different from Legitimation and does not grant a father any custodial rights to his biological child.

Establishment of Paternity does not guarantee that a Legitimation will be granted if filed in the future.

Establishment of Paternity creates the legal obligation for a man to provide financial support for a the child. (Practical Application: If your child's mother files an application for child support services with DHS, and paternity is already established, you usually will not be permitted to contest paternity or demand establishment of paternity.)

Paternity Acknowledgement WHAT YOU SHOULD KNOW ABOUT A paternity acknowledgment:

• Legally establishes paternity of a child for the purpose of ordering child support. • Both the mother and the putative father must sign the form in the presence of a Notary Public, and it must be filed with State Office of Vital Records within 30 days of execution. • May be voluntarily rescinded up to 60 days after submission. • May only be challenged in court after 60 days on the basis of fraud, duress or material mistake of fact. Form can be found ONLINE at: dph.georgia.gov (Search PATERNITY ACKNOWLEDGEMENT, or see link below) State or County Office of Vital Records, or Probate Court. • Usually Paternity Acknowledgement is offered to parents at the hospital when the child is born. Father's name will be added to the child's Birth Certificate when Paternity Acknowledgment submitted. • Child's last name can be changed on the Paternity Acknowledgment if submitted within 1 year of birth.

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TIP: Complete and submit this form ONLY IF you are POSITIVE you are the biological father of the child. http://dph.georgia.gov/sites/dph.georgia.gov/files/Paternity%20Acknowledgement% 20(Form%203940).pdf

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Petition to Establish Paternity WHO MAY FILE A PETITION TO ESTABLISH PATERNITY:

• The Child; • The Mother of the Child; • Relative in whose care the Child has been placed; • DHS (on behalf of the Child; or • Alleged Father of the Child.

YOU SHOULD KNOW:

• A father may file a Petition to Establish Paternity and request Legitimation in the same action. However, establishing paternity alone will not give him any rights to his child. • A Court can order parties to submit to a DNA Test to establish paternity. • Evidence used to establish paternity includes: o DNA Test results (from facilities approved by the American Association of Blood Banks), o Refusal to participate in DNA Testing, o Testimony about sexual access to mother by any person on or about the time of conception, and/or o Other appropriate evidence.

Paternity Establishment through Department of Human Services:

• DHS may file a Petition to Establish Paternity when an application for child support services is filed and no Acknowledgement of Paternity has been filed. • DHS must offer DNA Testing to father to establish paternity if paternity has not been acknowledged. • Refusal to participate in DNA Testing will usually result in a determination of paternity. • Generally, a father cannot convert a DHS paternity/child support case into a Legitimation, and thus, no rights will be granted to a father in a paternity action brought by DHS.

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LEGITIMATION

WHAT is legitimation?

Process through which a man establishes a legal relationship as the father of a child. Legitimation renders a child the legitimate heir of a man and permits the father and the child to inherit from each other.

HOW CAN A FATHER LEGITIMATE A CHILD?

• BE MARRIED TO THE MOTHER OF THE CHILD AT THE TIME OF BIRTH OR WITHIN THE USUAL PERIOD OF GESTATION. • MARRY THE MOTHER OF THE CHILD AFTER THE BIRTH OF THE CHILD. • FILE A PETITION FOR LEGITIMATION.

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Petition for Legitimation WHAT YOU SHOULD KNOW:

• ONLY a man/father may legitimate a child. Neither a mother, nor a third party can file a petition to legitimate a child on a man/father's behalf. • Petition for Legitimation is not an "absolute right" for a father. YOUR PETITION CAN BE DENIED IF YOU DO NOT MEET THE LEGAL STANDARDS.

LEGAL STANDARDS:

A petitioner in a Legitimation action against a mother must prove that he has not abandoned his opportunity interest in developing a relationship with the child, and that legitimation is in the best interest of the child.

• A man/father may also request physical custody, parenting time, and legal custody in a Legitimation action. • If you are not married to the mother of your child and do not plan to marry her, Legitimation is the only way to obtain legal and physical custody rights to your child. • A father can receive primary custody in a Legitimation. • Child support is almost always established in a Legitimation. If you file a Petition for Legitimation, expect to address child support in the same case if it is not already ordered.

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CHILD CUSTODY

• JUDGES (NOT JURIES) DECIDE CHILD CUSTODY CASES. • WHAT DOES A JUDGE HAVE TO DETERMINE IN AN INITIAL CHILD CUSTODY CASE?

"The duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly."

O.C.G.A. § 19-9-3

• NEITHER MOTHERS, NOR FATHERS START OFF WITH A LEGAL ADVANTAGE IN A CUSTODY CASE. EACH PARENT BEGINS WITH A "CLEAN SLATE". • JUDGE MAY CONSIDER ALL CIRCUMSTANCES OF A CASE. • A 14 YEAR-OLD CHILD MAY SELECT WHERE HE/SHE WANTS TO LIVE AS LONG AS THE COURT DETERMINES IT TO BE IN HIS/HER BEST INTEREST. • IF A CHILD IS 11-13 YEARS-OLD, THE COURT MUST CONSIDER THE CHILD'S DESIRES AND EDUCATIONAL NEEDS IN ADDITION TO OTHER FACTORS. • GEORGIA LAW PROVIDES A LIST OF 17 FACTORS A JUDGE MAY CONSIDER IN DETERMINING WHAT IS IN THE BEST INTERESTS OF A CHILD.

TIP: THE FIRST CUSTODY ORDER IS USUALLY A LEGITIMATION ORDER OR DIVORCE DECREE

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Physical custody vs. leagal custody What is PHYSICAL CUSTODY?

THE RIGHT TO LIVE WITH CHILD AND/OR HAVE PARENTING TIME WITH A CHILD.

TYPES OF PHYSICAL CUSTODY:

• PRIMARY PHYSICAL CUSTODY PARENTING TIME • SOLE PHYSICAL CUSTODY JOINT PHYSICAL CUSTODY

What is LEGAL CUSTODY?

1. THE RIGHT TO MAKE MAJOR DECISIONS OR PARTICIPATE IN MAJOR DECISION- MAKING ON BEHALF OF A CHILD. COURTS RECOGNIZE THE FOLLOWING 4 AREAS AS

"MAJOR DECISION AREAS":

A. EDUCATIONAL EDUCATIONS B. MEDICAL DECISIONS C. EXTRACURRICULAR ACTIVITIES D. RELIGIOUS UPBRINGING 2. AND THE RIGHT TO HAVE ACCESS TO INFORMATION (INCLUDING PROTECTED INFORMATION)

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CHILD CUSTODY FACTORS

O.C.G.A. § 19-9-3(a)(3)

A) THE LOVE, AFFECTION, BONDING, AND EMOTIONAL TIES EXISTING BETWEEN EACH PARENT AND THE CHILD;

B) THE LOVE AFFECTION, BONDING, AND EMOTIONAL TIES EXISTING BETWEEN THE CHILD AND HIS OR HER SIBLINGS, HALF SIBLINGS, AND STEPSIBLINGS AND THE RESIDENCE OF SUCH OTHER CHILDREN;

C) THE CAPACITY AND DISPOSITION OF EACH PARENT TO GIVE THE CHILD LOVE, AFFECTION, AND GUIDANCE AND TO CONTINUE THE EDUCATION AND REARING OF THE CHILD;

D) EACH PARENT'S KNOWLEDGE AND FAMILIARITY OF THE CHILD AND THE CHILD'S NEEDS;

E) THE CAPACITY AND DISPOSITION OF EACH PARENT TO PROVIDE THE CHILD WITH FOOD, CLOTHING, MEDICAL CARE, DAY-TO-DAY NEEDS, AND OTHER NECESSARY BASIC CARE, WITH CONSIDERATION MADE FOR THE POTENTIAL PAYMENT OF CHILD SUPPORT BY THE OTHER PARENT;

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(F) THE HOME ENVIRONMENT OF EACH PARENT CONSIDERING THE PROMOTION OF NURTURANCE AND SAFETY OF THE CHILD RATHER THAN SUPERFICIAL OR MATERIAL FACTORS;

(G) THE IMPORTANCE OF CONTINUITY IN THE CHILD'S LIFE AND THE LENGTH OF TIME THE CHILD HAS LIVED IN A STABLE, SATISFACTORY ENVIRONMENT AND THE DESIRABILITY OF MAINTAINING CONTINUITY;

(H) THE STABILITY OF THE FAMILY UNIT OF EACH OF THE PARENTS AND THE PRESENCE OR ABSENCE OF EACH PARENT'S SUPPORT SYSTEMS WITHIN THE COMMUNITY TO BENEFIT THE CHILD;

(I) THE MENTAL AND PHYSICAL HEALTH OF EACH PARENT;

(J) EACH PARENT'S INVOLVEMENT, OR LACK THEREOF, IN THE CHILD'S EDUCATIONAL, SOCIAL, AND EXTRACURRICULAR ACTIVITIES;

(K) EACH PARENT'S EMPLOYMENT SCHEDULE AND THE RELATED FLEXIBILITY OR LIMITATIONS, IF ANY, OF A PARENT TO CARE FOR THE CHILD;

(L) THE HOME, SCHOOL, AND COMMUNITY RECORD AND HISTORY OF THE CHILD, AS WELL AS ANY HEALTH OR EDUCATIONAL SPECIAL NEEDS OF THE CHILD;

(M) EACH PARENT'S PAST PERFORMANCE AND RELATIVE ABILITIES FOR FUTURE PERFORMANCE OF PARENTING RESPONSIBILITIES;

(N) THE WILLINGNESS AND ABILITY OF EACH OF THE PARENTS TO FACILITATE AND ENCOURAGE A CLOSE AND CONTINUING PARENT-CHILD RELATIONSHIP BETWEEN THE CHILD AND THE OTHER PARENT, CONSISTENT WITH THE BEST INTEREST OF THE CHILD;

(O) ANY RECOMMENDATION BY A COURT APPOINTED CUSTODY EVALUATOR OR GUARDIAN AD LITEM;

(P) ANY EVIDENCE OF FAMILY VIOLENCE OR SEXUAL, MENTAL, OR PHYSICAL OR CRIMINAL HISTORY OF EITHER PARENT; AND

(Q) ANY EVIDENCE OF SUBSTANCE ABUSE BY EITHER PARENT.

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PREPARING FOR A CUSTODY CASE

DOCUMENTATION:

• PARENTING TIME • COMMUNICATION • VIOLATIONS OF COURT ORDERS • DRUG USE • ABUSE INVOLVEMENT • HISTORY OF DECISION-MAKING • EVIDENCE SUPPORTING 17 FACTORS

WITNESSES:

• FAMILY MEMBERS • CHURCH MEMBERS • SPORTS TEAM PARENTS • CLASSMATE PARENTS • PARENTS TEACHERS • COUNSELORS • DOCTORS • FAMILY FRIENDS

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Consistency is key!

Preparation for a custody case begins well before a petition is filed!

CO-PARENTING TIPS

• No "Petting Zoo Parenting" • Provide sufficient notice to the other parent. Be flexible. • Do not pass messages through the child. • Do not disparage the child's other parent in front of the child. • Your child needs consistency between homes. • Do not use the child as a weapon against the other parent.

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ADOPTION

WHAT IS ADOPTION?

Legal process by which a non-parent renders a child his/her legal heir.

FOUR TYPES

RELATIVE STEP PARENT NON-RELATIVE AGENCY

• Applies to • Applies to • Applies to all • Applies to specific list of spouse of other adoptions family either parent. individuals. initiated by members (e.g.: • Step-parent • Must be at DFACS or an , must be 21 least 10 years adoption aunt, etc.). years old. older than the agency. • Relative must child. be 21 years old • Must be 25 if not married.

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DADS AND ADOPTION What happens when a biological father has not legitimated the child being adopted?

• A biological father may not be notified at all if the mother does not disclose his identity. • A biological father may not be notified at all if his name is not on the Putative Father Registry A biological father may be notified by mail or by Publication (local newspaper) only. (He is not entitled to personal service!) • A biological father must file a Legitimation and provide notice to the adopting party within 30 days of receiving notice.

Surrender of parental rights (for legal parents) is generally required except in the following circumstances:

• Abandonment by parent. • Parent cannot be found (diligent search must take place). Parent is insane/incapacitated. • Parent raped other parent to cause conception of child. Parent failed to exercise proper parental care/control. o This includes willful failure to pay court-ordered child support for 12 months or more!

Relative & Step-Parent Adoptions:

• Much easier to obtain without a surrender from father. Petitioner must prove one of the following: o Parent failed to communicate or attempt to communicate with the child in a meaningful way for 1 year or more; or o Parent failed to provide care and support of that child as required by law or judicial decree. • Petitioner must show that no justifiable reason exists for the parent's failure.

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CHILD SUPPORT BASICS

WHAT YOU SHOULD KNOW:

• Georgia law requires both parents to support a child financially. • A child support order is typically not entered until paternity is established. Both parents' respective income is considered in the child support calculation. • All child support orders are based upon a Georgia Child Support Worksheet which must be completed electronically at: https://csconlinecalc.georgiacourts.gov/frontend/web/index.php. • Personal expenses not related to the child are not usually factored into the child support calculation. However, there are exceptions to this. • After the first child support order is issued, either party may request a modification at anytime if financial circumstances change. • After the first modification order is issued, a party may only request a modification every 2 years UNLESS: o Either party's income reduces 25% or more involuntarily; o A non-custodial parent fails to exercise court-ordered parenting time; o A non-custodial exercises more parenting time than what is court- ordered. • CREDITS/DEVIATIONS CAN BE APPLIED TO YOUR CHILD SUPPORT AMOUNTS:

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Common CHILD SUPPORT DEVIATIONS and credits

• HIGH INCOME LOW INCOME • HEALTH-RELATED INSURANCE LIFE INSURANCE • CHILD AND DEPENDENT CARE TAX CREDIT • TRAVEL EXPENSES • MORTGAGE • PERMANENCY PLAN/ • EXTRAORDINARY EXPENSES • PARENTING TIME • NON-SPECIFIC DEVIATION • PRE EXISITING CHILD SUPPORT ORDERS

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