It may sound strange but there may be circumstances where no adult has a legal right to a child even if their name appears on the birth certificate. A recent case came into the office involving a child whose mother died in a car crash. The mother and a female friend raised the child together for the child’s entire life. However, the friend, who is seen as a parent to the child, has no legal rights.
What About the Father?
The father signed the birth certificate, but he never legitimated the child. Therefore, the father also has no legal rights to the child. What happens to the child now? Someone needs to establish legal rights and get custody. After I consulted on the case, the father assumed physical custody of the child and the friend wanted to continue to raise the child as she’d always done. Up to this point, the father had not been involved in the child’s life and had a history of drug and alcohol abuse.
He figured since he was the biological parent and his name was on the birth certificate, he had all the rights in the world that he needed. But that’s not the case.
What Happens Next?
From the perspective of the friend, she needs to file immediately under the new Equitable Caregivers Statute for child custody. She needs to move quickly and not allow the status quo to sit with the father having custody by possession. Under the new child custody statute, even though she is not biologically related to the child, she can win custody. She can do this even against the biological father, whose only claim to the child is he is on the birth certificate. Since the child was never legitimated, this is largely irrelevant.
Under the new statute, the best interest of the child is the standard. And it’s the statute that could give her an advantage in court against the father.
On the other hand, the father, who reiterates that he is on the birth certificate, needs to immediately file a case for legitimation and become the legal father. Only then will he have the power to obtain custody against the friend. At the same time, the father took so many years to legitimate, assuming he does, that if the friend files for custody she can intervene and defend against the father being legitimate. The father may have lost what is known in legitimation law as “his opportunity interest” in the child. This is because he waited so long to legitimate, the child now sees the friend as his parent. It may not be in the best interest of the child to allow the father to legitimate at this time.
The Future for the Caregivers
Yes, there can be circumstances where no one has the legal right to the child. In such circumstances there are legal steps that any person, whether on the birth certificate, a non-biological caregiver, or a relative, needs to take immediately to pursue legal rights and custody of the child. This can be done even against the biological father or mother.
The new Equitable Caregiver’s child custody statute makes things very interesting in circumstances like this where no one presently has legal rights to the child. While the father is only on the birth certificate, it can be argued that he has lost his opportunity interest now, after waiting so long, to legitimate the child. Only a court can decide.
It pays to have an attorney who knows the ins and outs of these rules and can move forward quickly to gain your legal rights and custody of a child in similar circumstances.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com