September 9, 2014
Authored by: Luke Lantta
Georgia‘s convoluted and contradictory “legitimation” process through which a man claims paternity of a child born out of wedlock can have significant implications on inheritance. Georgia’s General Assembly, however, has tinkered with the process to the point that it can put well-meaning people at risk when it comes to disposition of property. The General Assembly has passed legitimation laws without amending related Code sections creating a panoply of statutory conflict and futility. In In re Estate of James Andrews Hawkins, James Hawkins tried to administratively legitimate his girlfriend’s child but this administrative legitimation did not make the child Hawkins’ heir at law. Where did Hawkins go wrong?
Hawkins was the boyfriend of Yuvette Ridley. Ridley became pregnant by another man and gave birth to a son, Makaleb. Although Hawkins knew he was not Makaleb’s father, Hawkins continued in a relationship with Ridley, bought her maternity clothes, paid for doctor’s visits, and was present when Makaleb was born. Hawkins held the child out as his son and named the child as a dependent on his applications for Veterans Administration and Social Security benefits. The day after Makaleb was born, Hawkins and Ridley went to the Georgia State Vital Records Office and completed a State of Georgia Paternity Acknowledgment form. The form stated “[t]his Acknowledgment attests that James Andrew Hawkins is the natural father of the child born on the 25th day of June 2007,” and that the couple was “requesting to have the name of the natural father entered on the birth certificate.” Both Ridley and Hawkins signed this portion of the form. At the time that the acknowledgment was executed, a relevant Georgia statute provided that when both the mother and father have signed a voluntary acknowledgment of paternity and the acknowledgment is recorded in the putative father registry, the acknowledgment shall constitute a legal determination of paternity, subject to the right to rescind in certain circumstances. In 2008, this law was amended to add that the acknowledgment of paternity shall not constitute a legal determination of legitimation.
There was a second portion to the form that contained two more signature spaces and which specified that by signing below the couple voluntarily consented and agreed that the relationship between the named child and father shall be considered legitimate for all purposes under law pursuant to O.C.G.A. § 19-7-22(g)(2). This statute, in turn, provided that in a voluntary acknowledgement of paternity, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating voluntary acknowledgment of legitimation. Both Ridley and Hawkins signed this portion of the form, which stated at its conclusion that this “affidavit” must be signed by the mother and the person identified as the father in the presence of a witness as set forth in O.C.G.A. § 31-10-9[e](2). That statute provided that the name of the natural or putative father shall be entered on the birth certificate on the condition that if the mother is not married at the time of conception or the time of birth, the putative father’s name shall not be entered on the birth certificate without the written consent of the mother and the person named as father. The form signed by Ridley and Hawkins was witnessed by a worker in the records office and the worker’s name also appeared on the birth certificate.
When Hawkins died intestate, the probate court ultimately found that the child was not Hawkins’s heir at law and the Georgia Court of Appeals agreed. This “administrative legitimation” did not succeed in making Makaleb the heir at law of Hawkins. What went wrong?
There are several ways under Georgia law to allow a child born out of wedlock to inherit from or through the child’s father. The only potentially applicable avenues here were where (1) the father has executed a sworn statement signed by him attesting to the parent-child relationship or (2) the father signed the birth certificate of the child.
The first avenue failed because the paternity acknowledgment signed by Ridley and Hawkins was not a “sworn statement” even though the statement purported to be an “attestation” and that it amounted to an “affidavit.” There was no oath administered or taken. So, even though the acknowledgment purported to be an affidavit, there was no notary block to suggest that a notary was required, and, as a result, the acknowledgment was insufficient to allow inheritance.
The second avenue failed because, though Hawkins was listed on the birth certificate as Makaleb’s father, he did not sign the birth certificate. Of course, Georgia birth certificates do not normally bear the signature of either parent and, thus, the statutory path to inheritance through a father signing the birth certificate is just plain useless.
In Georgia, if a man without a will wants to upon his death pass along property to a child born out of wedlock, the best advice is to get a lawyer or consider adoption because, as Judge Boggs aptly cautions in his concurrence, the administrative legitimation process in Georgia is rife was frailties and unintended consequences.