A CLOSER LOOK AT PATERNITY DISPUTES
Gregory D. Golden
- CURRENT CASE LAW
Paternity Due To Artificial Insemination:
Brown vs. Gadson, 288 Ga. App. 323, 654 S.E.2d 179 (2007). Delores Brown entered into a written agreement with Gregory Gadson whereby he agreed to provide semen for her to use to become pregnant by artificial insemination. The agreement provides that Brown relinquished all of her rights to hold Gadson legally, financially, or emotionally responsible for any child as a result of an artificial insemination using his semen. After her second child, Brown filed a paternity action, seeking child support from Gadson. The trial court dismissed Brown’s case. The Court of Appeals of Georgia affirmed the trial court’s ruling by recognizing that biological paternity does not correspond with the responsibility to provide support in cases of artificial insemination.
Right To Jury Trial:
Banks vs. Hopson, 275 Ga. 758, 571 S.E.2d 730 (2002). The parties were not married but had a child together. The mother filed a complaint for the determination of paternity. Subsequently, the father filed a separate complaint to legitimate the child. By consent of both parties, the two actions were consolidated. Prior to trial, the mother requested a jury trial on the issue of child support. O.C.G.A. § 19-7-40(a) prohibits jury trials in paternity actions; however, O.C.G.A. § 19-7-22(f) allows jury trials on the issue of child support in legitimation proceedings. The trial court denied the mother’s request for a jury trial, and the Supreme Court of Georgia granted the mother’s petition for certiorari to resolve the conflict between these two statutes. In its decision, the Supreme Court of Georgia looked at the statutory language, the legislative intent, the “evil” being addressed, and the remedy. Ultimately, it held that a claim for child support that is part of a petition to establish paternity falls within the statutory prohibition in O.C.G.A. § 19-7-40(a). Thus, the mother could not request a jury trial despite the consolidation of her case with the father’s legitimation action.
Attorney’s Fees In A Paternity Claim:
Sinkwich vs. Conner, 288 Ga. App. 320, 654 S.E2d 182 (2007). The father filed a petition to determine paternity and, if it was determined that he was the biological father, then to legitimate the child, establish visitation, and set child support. The mother filed an answer and counterclaim seeking an award of attorney’s fees. At the conclusion of the case, the trial court ruled that it had “inherent authority to award attorney’s fees” and made such an award to the mother. On appeal, the Court of Appeals of Georgia vacated and remanded the trial court’s award, stating that the trial court must state a statutory basis for such an award. Such a basis is necessary since an award of attorney’s fees is generally not available unless supported by statute or contract.
Cothran vs. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838 (2007). The parties were married with two (2) children. After the divorce, the father filed an action claiming that he was not the biological father of one of the children and requested a modification of child support. The father obtained an order requiring the mother to submit to DNA testing, to which she refused. The father then filed a motion for contempt due to her refusal. Prior to the contempt hearing, the parties resolved all of the issued except for the father’s request for attorney’s fees. The trial court awarded $3,705 to the father as “reasonable compensation,” under O.C.G.A. § 19-6-2. The mother appealed, claiming that such an award was improper. The Court of Appeals of Georgia agreed with the mother in that such an award was outside of the statutory basis established by O.C.G.A. § 19-6-3. The case was not one that arose out of the original divorce case, or a party’s non-compliance therewith, but rather, a contempt proceeding arising out of a subsequent action to determine paternity after a divorce decree had been entered.
Paternity In A Probate Case:
In re Estate of Warren, A09A1297 (2009). Paternity is not only used for the purposes of establishing child support obligations but can also be used to establish a right to receive an inheritance. Doris Mattison alleged that she was the illegitimate daughter of the late William Warren, and entitled to share in his estate with his legitimate son, Ralph Warren (“Ralph”), pursuant to O.C.G.A. § 53-2-3. At trial, Mattison produced evidence of DNA testing done on samples collected from herself, her mother, and Ralph, which showed a 99.65% probability that Mattison and Ralph were half-siblings by having either the same mother or the same father. It was undisputed that Mattison and Ralph did not have the same mother, and Ralph’s father was William Warren. The trial court concluded that Mattison did meet her burden of proof to show that William Warren was her biological father and she was entitled to share in his estate. Ralph appealed, claiming that such DNA evidence had to be a direct comparison of samples taken from the alleged illegitimate child and the putative father. The Court of Appeals of Georgia disagreed with Ralph and affirmed the trial court’s decision.
Paternity Issue In A Temporary Order:
Williamson vs. Williamson, A09A1767 (2010). During their marriage, Cynthia and Clinton had a child. During their divorce litigation, Cynthia alleged that Clinton may not be the biological father of the child and requested DNA testing to resolve the issue; Clinton opposed such DNA testing. After a hearing, the trial court granted joint legal custody of the child to the parties and ordered Clinton to pay child support to Cynthia. Clinton’s attorney contemporaneously wrote a letter to Cynthia’s letter confirming that the parties agreed that there is no longer an issue as to the paternity of the child. After hiring a new attorney, Cynthia moved the trial court to compel DNA testing but the trial court denied her request on the basis that she is precluded from raising the issue and that DNA testing would not be in the child’s best interest. In an interlocutory appeal, the Court of Appeals of Georgia agreed with Cynthia that she was not precluded from raising the issue during a final trial because the purported agreement did not determine the issue on a final basis; the referenced letter was in conjunction to a temporary order. Furthermore, the fact that the temporary order addressed custodial and child support issues does not prevent Cynthia from raising the paternity issue. A temporary order is different in nature and purpose than a final decree; it does not adjudicate the parental rights of the parties. However, the Court of Appeals of Georgia held that although Cynthia could raise the issue of paternity at a final trial, it was not error for the trial court to deny her motion to compel paternity testing based upon the best interests of the child.
- PATERNITY FRAUD
“Are you sure its mine?” This may be a collective comment after a woman tells a man that she is pregnant, when they are not married. Where the parties go from that point depends on their relationship. However, for the next nine (9) months, questions as to paternity may be visited and revisited by both parties. During this time, one or both parties may undertake changes in their lives or additional responsibilities in preparing for the birth of a child. During this period of time, relationships may change for the better or possibly for the worse. However, the constant is that when the child is actually born, the new mother and father will be undergoing a continuum of emotions. Is this the best time for a putative father to begin asserting legal rights or demanding deoxyribonucleic acid testing? The answer is “yes” if he doesn’t want to risk paying child support for a child who is not his.
Paternity fraud is a term that has had increased frequency in litigation. It is a term that describes a father who is paying child support for a child to whom he is not the biological father. Men that fall into this category may or may not have yet entered into a relationship with the child for whom he is paying support. Clearly, the more difficult proposition is for the man who has established an ongoing relationship or bond with his child. In such a situation, he must ask himself whether he is prepared to throw it away in an effort to terminate his child support obligation.
Once a decision is made to attempt to set aside a previous determination of custody, O.C.G.A. § 19-7-54 provides a method for setting aside a determination of paternity, to-wit:
“(a) In any action in which a male is required to pay child support as the father of a child, a motion to set aside a determination of paternity may be made at any time upon the grounds set forth in this Code section. Any such motion shall be filed in the superior court and shall include:
(1) An affidavit executed by the movant that the newly discovered evidence has come to movant’s knowledge since the entry of judgment; and
(2) The results from scientifically credible parentage-determination genetic testing, as authorized under Code Section 19-7-46 and administered within 90 days prior to the filing of such motion, that finds that there is a 0 percent probability that the male ordered to pay such child support is the father of the child for whom support is required.
(b) The court shall grant relief on a motion filed in accordance with subsection (a) of this Code section upon a finding by the court of all of the following:
(1) The genetic test required in paragraph (2) of subsection (a) of this Code section was properly conducted;
(2) The male ordered to pay child support has not adopted the child;
(3) The child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;
(4) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child; and
(5) The male ordered to pay child support with knowledge that he is not the biological father of the child has not:
(A) Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;
(B) Acknowledged his paternity of the child in a sworn statement;
(C) Been named as the child’s biological father on the child’s birth certificate with his consent;
(D) Been required to support the child because of a written voluntary promise;
(E) Received written notice from the Department of Human Resources, any other state agency, or any court directing him to submit to genetic testing which he disregarded;
(F) Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46.1; or
(G) Proclaimed himself to be the child’s biological father.
(c) In the event movant fails to make the requisite showing provided in subsection (b) of this Code section, the court may grant the motion or enter an order as to paternity, duty to support, custody, and visitation privileges as otherwise provided by law.
(d) In the event relief is granted pursuant to subsection (b) of this Code section, relief shall be limited to the issues of prospective child support payments, past due child support payments, termination of parental rights, custody, and visitation rights.
(e) The duty to pay child support and other legal obligations for the child shall not be suspended while the motion is pending except for good cause shown; however, the court may order the child support be held in the registry of the court until final determination of paternity has been made.
(f)(1) In any action brought pursuant to this Code section, if the genetic test results submitted in accordance with paragraph (2) of subsection (a) of this Code section are provided solely by the male ordered to pay child support, the court on its own motion may, and on the motion of any party shall, order the child’s mother, the child, and the male ordered to pay child support to submit to genetic tests. The court shall provide that such genetic testing be done no more than 30 days after the court issues its order.
(2) If the mother of the child or the male ordered to pay child support wilfully fails to submit to genetic testing, or if either such party is the custodian of the child and wilfully fails to submit the child for testing, the court shall issue an order determining the relief on the motion against the party so failing to submit to genetic testing. If a party shows good cause for failing to submit to genetic testing, such failure shall not be considered willful.
(3) The party requesting genetic testing shall pay any fees charged for the tests. If the custodian of the child is receiving services from an administrative agency in its role as an agency providing enforcement of child support orders, such agency shall pay the cost of genetic testing if it requests the test and may seek reimbursement for the fees from the person against whom the court assesses the costs of the action.
(g) If relief on a motion filed in accordance with this Code section is not granted, the court shall assess the costs of the action and attorney’s fees against the movant.”
The requirements of such a motion are fairly objective to set aside a determination of paternity and do not give much discretion to the trial court.
There are three (3) noteworthy provisions in O.C.G.A. § 19-7-54. First in sub-Paragraph (g), the legislature mandates the assessment of attorney’s fees against the man, if his motion is not granted. By using the word “shall,” the legislature appears to remove any discretion on such matter by the trial court. Given how costly an action to set aside a paternity determination can be, an attorney would be derelict in his duties if he did not advise his/her client of such a possibility.
Second, in sub-Paragraph (c), the legislature included language that if a man did not meet the requirements of this Code section, then the trial court could still grant the requested relief “as otherwise provided by law.” In the case of Cohen vs. Nudelman, O.C.G.A. § 19-7-54 was enacted after the filing of the father’s action to set aside a paternity determination but before the trial court ruled. 269 Ga. 517 (2004). The mother argued on appeal that the father did not meet the requirements of O.C.G.A. § 19-7-54. The Supreme Court of Georgia ruled that nothing in the statute prohibits the trial court from issuing a decision using the standard pronounced in Roddenberry vs. Roddenberry rather than the statutory mechanism. 255 Ga. 715, 342 S.E.2d 464 (1986). In Roddenberry, the Supreme Court of Georgia held that paternity and child support could be set aside through an extraordinary motion for new trial by showing, to-wit:
- that newly discovered evidence has come to his knowledge since the trial;
- that want of due diligence was not the reason that the evidence was not acquired sooner;
- that the evidence was so material that it would probably produce a different verdict;
- that it is not cumulative only;
- that the affidavit of the witness is attached to the motion or its absence accounted for; and
- that the new evidence does not operate solely to impeach the credit of a witness.
With the Roddenberry standard, there is much more discretion available to the trial court to grant or deny the requested relief. Thus, when you have a client who desires to set aside a paternity determination, you can look at the case law as well as the statutory standards to determine if one burden will be easier to carry than the other in order to obtain the requested relief.
Third, in this Code section, one aspect of the familial relationship is completely ignored: is delegitimation, to avoid a child support obligation, in the best interests of the child? Depending on the age of the child, some type of a bond has already been established between the “father” and child. How does a court do equity by releasing a man from a financial obligation that he is not legally obligated to pay, without infringing on the child’s financial, physical, and emotional well-being? After all, the child is an innocent party in this controversy. In Baker vs. Baker, the Supreme Court of Georgia recognized this missing aspect and urged the legislature to examine it as soon as possible; to date, the legislature has not seen fit to address it. 276 Ga. 778, 582 S.E.2d 102 (2003). There is a public policy favoring the presumption of a child’s legitimacy, which is one of the most firmly established precepts known in law. Miller vs. Miller, 258 Ga. 168, 366 S.E.2d 682 (1982). So the “million dollar question” is whether a “best interests of the child” determination should enter into the perfunctory mechanism codified in O.C.G.A. § 19-7-54?
- PATERNAL RIGHTS
By fathering a child out of wedlock, a father has certain rights and responsibilities. His responsibilities are cited in O.C.G.A. § 19-7-24 which states, in pertinent part, that
“[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.”
In essence, without doing anything else, a father has a legal obligation to support his child.
O.C.G.A. § 19-7-25 states, in pertinent part, that
“[o]nly the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates 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.”
Thus, until the father files a legitimation action, pursuant to O.C.G.A. § 19-7-22, he does not have any rights to request custody or visitation of his minor child. Any time or input that the mother allows the biological father to have in the child’s life is determined unilaterally by the mother. Even with an acknowledgment of paternity, the biological father has no right to make any demands with regard to the child until he legitimates the child; until he does so, the mother can simply ignore such demands. During this period of time, the mother is in complete control of who has access to the child.
Once the biological father files such an action, the trial court can declare the child 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. If child support was not previously established, the trial court will also set an amount of child support for the benefit of the minor child.
- UPDATE ON PATERNITY AFFIDAVITS
Paternity acknowledgments and paternity affidavits may contain similar information but serve two different purposes. They are interchangeably used by laypersons, lawyers, and even judges.
O.C.G.A. § 19-7-46.1(b) and (c), state, in pertinent part that
“(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.
(c) After the 60 day rescission period specified in subsection (b) of this Code section, the signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment. The legal responsibilities of any signatory, including child support obligations, arising from the acknowledgment may not be suspended during the challenge, except for good cause shown.”
(A sample of a Paternity Acknowledgment – State of Georgia is included at the end of this Section.) The purpose of this statute is to make a final resolution of paternity. The form must be signed by the mother and the father. By signing this acknowledgment, the father is waiving paternity testing; he is taking the mother’s word that he is the biological father. However, the father does have a period of time (up to 60 days or the entry of a court order related to paternity, whichever first occurs) to rescind this acknowledgment. If the acknowledgment is not rescinded and the father later learns that the child is not his, as previously discussed, it may be a costly endeavor to attempt to set aside the paternity acknowledgment.
It must be noted that O.C.G.A. § 19-7-46.1(b) specifically states that an “acknowledgment of paternity shall not constitute a legal determination of legitimation pursuant to Code Section 19-7-21.1 or 19-7-22.” Thus, by signing this acknowledgment, the father will still not be considered a legal parent or have any rights to visitation or custody of the minor child. However, an incongruancy in the law appears in O.C.G.A. § 19-7-22(g)(2) which states, in pertinent part, that
“[i]n 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.”
The former statute was effective July 1, 2008, approximately three years after the latter statute’s enactment. Thus, it is reasonable to believe that the execution of an acknowledgment of paternity would not be deemed sufficient for a father to legitimate a child. Regardless, it would be prudent to advise a biological father to file a legitimation action to address all available issues (e.g., name, inheritance, visitation, custody, child support, etc.).
Paternity affidavits are used by the Georgia Office of Child Support Services to assist it in obtaining child support. (A blank paternity affidavit is included at the end of this Section.) As can be seen on this form, three (3) different classes of people may complete and execute this form. Depending on which class a client belongs to, the advice from an attorney will differ.
If the father is completing this affidavit, then he, in essence, is making himself known that he claims to be the father of the minor child, and can be contacted about paying child support. If it has not already been accomplished by other means, by signing this affidavit, he is waiving his right to have any paternity testing; he is taking the mother’s word that he is the father. As previously discussed, it may be a costly endeavor to attempt to set aside a determination of paternity, such as a paternity affidavit.
If the mother is completing this affidavit, then her sole purpose is to commence the process to establish child support. This affidavit will be forwarded to the Office of Child Support Services for the purpose of providing child support program services to the mother. There is simply no other purpose for a mother to complete this affidavit. If your client does not wish to pursue child support through the state system but rather, through a private paternity action, then this affidavit does not need to be considered.
Similarly, if a non-parent custodian is completing this affidavit, then his/her sole purpose is to commence the process to establish child support. As with the mother, this affidavit will be forwarded to the Office of Child Support Services for the purpose of providing child support program services to the non-parent custodian. The Office of Child Support Services will use the information provided by the non-parent custodian to make contact with the biological parents in order to determine incomes and proper amounts of support.