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Terminating Parental Rights, Legitimation, Adoption

by gaflp2 | November 20th, 2014 | No Comments

Brine v. Shipp, 291 Ga. 376 (2012)

 Topics Covered:

-       Terminating Parental Rights

-       Legitimation

-       Adoption

Summary

The Superior court does not have the authority to terminate a legal father’s parental rights and grant a biological father’s petition to legitimate a child as part of a divorce matter.  Only the Juvenile Court has jurisdiction to terminate parental rights.  The Superior Court has jurisdiction to terminate parental rights only as part of an adoption. 

Back Ground 

Gwendolyn and William Brine were married just weeks after Gwendolyn had ended a relationship with Brian Shipp.   After the marriage, Gwendolyn gave birth to a child.  William was listed on the child’s birth certificate and was the child’s legal father.  In 2010, William filed for divorce.  Gwendolyn then informed Brian that he was likely the biological father.

 A DNA test confirmed that Brian was the biological father.  Brian then  sought to intervene as a party to Gwendolyn and William’s divorce and petitioned to legitimate the child as his own.  The Superior Court terminated William’s rights as the legal father and granted Brian’s petition to legitimate the child, giving Brian primary physical custody of the child. 

 Discussion 

O.C.G.A. § 19-7-22 (a) gives the Superior Court jurisdiction over legitimation matters concerning children who have been born out of wedlock.  

O.C.G.A. 15-11-28 (a)(2)(c) gives exclusive jurisdiction to the Juvenile Court for all matters concerning termination of parental rights.   The one exception is in cases concerning adoption.  

The child in this case was born “in wedlock” and so was the legal or “legitimate” child of William.   When the Superior Court granted Brian’s petition to legitimate the child it had to terminate the parental rights of William, making the child “illegitimate” for the purpose of granting Brian’s petition to legitimate.  

The problem is that while the Superior Court has jurisdiction over matters concerning legitimation, it only has the authority to terminate parental rights as part of an adoption.  Since this case involved a divorce and legitimation, and was not an adoption, the Superior Court did not have jurisdiction to terminate the parental rights of the legal father (William).  So William’s parental rights had to be reinstated and Brain’s legitimation petition denied.

 

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