THI RD DI VI SI ON BA RN ES , P. J ., BOGG S and BRAN CH, JJ. NOTICE: Motions for reconsideratio n m ust be physically

received

in our clerk’s office with in ten days of the date

of decisi on to be deeme d timely filed. http://ww w.gaappeals.us/rules/ July 1 6, 2014


# In the Court of Appeals of Geo rgia
A1 4A 04 68 . IN RE ES TA TE OF JA M ES AN DR EW HA W KI NS
. B RANCH , Judge. AfterJames Hawkins died unm arrie d and intestate in 20 12, hi s gir lfr iend, Yu vette Ridley, fil ed a pet iti on forletter s of admini str ati on naming her as the estate’s administ r ator

and list ing her son Makaleb, whom H awkins had never adopted, as Haw kins’s only heir

at l aw. The probate court gr anted the pet iti on and named R idley
as the estate’s administrator and M akaleb as Haw kins’s s ole he ir. Hawkins’s sister, Patric ia Hu tchin s, then mo ved to set a side th is jud gm ent. F ollow in g a hea ring, the pro bate court

held that Hawkins was not the ch ild’s b iolog ical fath er an d tha t the ch ild
was not Hawkins’ s heir at l aw. The cour t also removed R idley as the estate’s adminis tratorand appo inted Hutchins i n her s tead. O n ap peal f rom this ju dgm ent, Ridley argues thatwhen H awkins executed a pater nity acknowledgment and obtained2

the lis ting of his name as the fat her on the child ’s birth certifica te, he c om plied with the pr ovi si ons of

OCGA § 5 3-2 -3 a nd ma de M aka leb his hei r at la w. W e disagr ee and the refo re affirm
. “W here a probate court sits as a find er of fact, w e acc ept its f indin gs if

they are supported by a ny e vide nce. T he p rob ate cou rt’s ap plicatio n of the law is subjec t to de
novo app ellat e rev iew , ho we ver .” In re Estate of Price , 324 Ga. App. 681 (751 SE2d 48 7) ( 20 13 ) (cit atio ns o mi tted ). So viewed, the re cord shows that shortly af te r Ridl ey became pr egnant by anotherman, she tol d Hawkins, he r boyfr iend, that he was not t

he biologi cal f

ather of the child. Hawkins himself never belie ved that he w as the ch ild’s biological father. Hawkins conti nued h is r elation ship with Rid ley n one theles s, pu rcha sing ma ternity clothes and paying f

or her doc tor’ s visi ts. Hawkins was pres ent at the bi r th of t

he chil d. On the day aft er the birth, the coupl e went t o a Stat e Vita l Recor ds Offi ce and completed a St at e of

Georgi a Pate rn it

y Acknowl edg me ntfo rm. As to pat erni ty, the form stat ed that

“[t ]hi s Acknowledg me nt att ests that James Andrew Hawkins i s the natural father

of the chil d born on the 25th day of June 2007, ” and that Ridl ey and Hawkins were “requesti ng to have the name of the natura l father enter ed o n the birth certifica te and the ch ild be nam ed M akale b Jam es A ndr ew Ha wk ins.” B oth R id ley an d1 Atthe tim e the p atern ity ac kno wl ed gme ntbe fo re us was ex ec ut ed , OCGA §

19- 7-4 6.1 p rov ided in rele van t part: (b) When bo th th e mo ther and father have sign ed a voluntary acknowledgment

of pater nity and the acknowledgment is r ecorde d in the p utat ive father re gist

ry est abli shed by subse cti on (d) of Code Secti on 19-11-9, the ac kno wle dgm ent sh all con stitute a legal d eterm inatio n of pater ni ty, sub je ct t o the r ight of any signatory t o resc ind the acknowledg ment p rior t o the date of t he support order, any other order adjudi cating pater

ni ty, or 60 d ays f

rom the sig ning of th e agr eem ent, whicheve r is e arli er. Recordi ng such information in the putative f ather r egistry shall constitute a legal determination of paternity for purpose s of esta blis hing afutu re ord er for sup por t, visit ation pri vileges, and other matte rs under

Code Secti on 19-7-51.
In 2008, OCGA § 19-7-46.1 (b) was amended to a dd that “[a] cknow led gment of pater nity shallnot constitut e a le gal det ermination of leg itim ati on pursuant to Code Se ctio n 1 9-7 -21 .1 o r 19 -7- 22 .” G a. L . 20 08 , Ac t 58 0, § 6. 3 Hawkins si gne d thi s po rt io n of th e f orm. 1 Th e seco nd p ortio n of the for m, which contains tw o m ore sig nat ure spa ces , s pecifi ed that “by signi ng below, [ Ridley and Haw kins] volu ntarily con sent a nd a gree that th e relatio nsh ip be twe en th e nam ed ch ild and father sha ll be conside red l egit imate for al l purpos es unde r the l aw pur suan t to2 OCGA § 19-7-22 (g) (2) p rovide s: “I n any volunt ary ac knowledgment of

pater nity which has been made and has not been r esci nded pursuant to Code Se cti on 19-7-46. 1, when both the m other and father free ly agree and consent, the chil d may be legi timat ed by the inclusi on of a st atement indic ati ng a voluntary acknowle dgment of legit imation.” OCG A § 19-7-21.1 (b), which bec am e effe cti ve on July 1, 2008, pro vide s: Prior to [a] child’s fir st bi rthday, a f ather of a chi ld born out

of wedlock may render

his r elationship with the chil d legi timat e when both th e mother and fat

her have free ly agr eed, consent ed, and signed a voluntary ackno w ledgment

of pat erni ty and an a cknowledgment of legi timation which have been made and have not been resc inded pur suant t o Code Secti on 19-7-46.1. The Stat e O ffice of Vita l Recor ds shal l provi de notice, in writing, of the alt ernat ives t o, l egal c onsequ enc es of, and the righ ts and respons ibil iti es of s igning a voluntary acknowle dgment of legi timation. 3 OCGA § 31-10-9 ( e) provi des in r elevant part that “[t] he name of the natural father or pu tativ e fat her sha ll be ent ered on the cert ifica te o f liv e bi rth,” on condit ion that“(2) I f the mother i s not married at either the ti me of conception orat th e t ime of birt h, the n am e of th e pu tative f ather shall n ot be ente red on the ce rtificate o f birth with out th e w ritten c ons ent o f the m othe r and the p erso n to b e nam ed as fathe r[.]” 4 OCGA § 1 9-7 -22 (g) (2) .” 2 Both Ridle y and Hawkins al so signe d this porti on of the fo rm, which st ated at it s conclusion t hat “t his af fidavit must

be signed by the mother and the per son to be identif ied as the fathe r in th e pre senc e of a witn ess as set fo rth in OC GA § 3 1-1 0-9 [e] (2 ).” 34 Hutchins h ad also petitioned the probate cou rtto become the conservator for Ella Ha wk ins , the inc apa citat ed m oth er o f bo th H utc hin s an d H aw kin s. 5 Eloise DeL aine, a worker at the records offi ce, signe d the pater nity acknowledge ment form as a w itness. DeLaine’s nam e also app ears o n the child ’s birth certi ficat e, which bear s the names of Ridl ey as mothe r and Hawkins as father. A few days af te r t he ch il d’ s b ir

th , Hawk in s t ook

a p at erni tyte st , wh ich conf irmed that he
was not the chil d’s bi ologic al f ather . Neverthel ess, Hawkins held Makaleb out as his son, and he na m ed the c hild a s a depende nt on his appli cati ons for Vet erans Ad mi nis tratio n an d S oci al S ecu rity ben efits
. AfterHawkins died intest ate on Apri l 11, 2012, Ridl ey fi led a pe tition i n De Ka lb Co unty Pro bate C our t for lette rs of a dm inistra tion n am ing M akale b a s Haw kins’s on l y heir . On May 22, 2012, t he probat e court

issue d letter s of adminis trationto Ridl ey. On Ju ne 1, 2012 , Hawk ins’s sister, Patricia Hutchins, file d t he instan t verifie d pe tition to deter min e heir s and a m otion to set a side th e pro bate court’s judgm ent and to replace Ridley as the estate’s adm instrator. 4 Atthe evidentiary hearing on Hutchins’s petitio n he ld on July 23, 2012, Ridley introduced the pater nity acknowledgment into evidence. Hutchins objected to Ridley’ s chara cterization of th e ack now ledg me nt as an “aff idavi t, ” argui ng that

it di d not6

amount to a “sworn state men t a ttesting to the pare nt-chil d relat ionship” as re quired by OCGA § 53-2-3 ( 2) (A) ( iii ), t he statutor

y prov isi on governi ng the r ights of inherit ance through the father by childrenborn out of wedlock. Hutchins int roduced into evid ence her p etition for g uard iansh ip an d co nser vato rship of h er m othe r as w ell as H aw kin s’s p ater nity test r esu lts. Afterthe heari ng, the tr ialcourt enter ed an orde r concluding that the pater nity acknowled gme nt did not s ucceed in render ing Makaleb Hawkins ’s hei r at law. The t rialcourt held that although R idley and H awkins h ad executed a p atern it y ackn ow ledg me nt, “this method for l egiti mating a child does not appl y in the prese nt
cas e.” Th e trial co urt co nclu ded th a t Hawkins “was not the bi ologic al f

ather ” of Ma kaleb, th at

Maka le b “i s no t an he ir at law of ” Hawki ns, andth at

“no me thod” o f “est abli shing a righ t of in herita nce f or a c hild b orn out o f we dloc k” as pro vide d in OCGA § 53-2-3 “applies in th is ca se.” The court also de signat ed Ell a Hawkins as t he decedent’s “sole heir

atlaw,” removed Ridl ey as admi nist rat or on the gr ound that

she had “s ig ne d [ th e] pa te rn it y a cknow le dgm en t w i th the knowledge that the decedent wa s not the bi ologic al f

ather ” of the chil d, and a ppointe d Hutchins in Ridl ey’ s ste ad. Ridley then moved for

recons ider ati on, prof

fering an aff

idavi t fr om DeLaine attesting thatshe worked as a m edica l reco rds a naly st at the hos pital w here the b irth took place,7

thatshe had “signed and witne ssed” t he pate rnit

y acknowledgment , and t hat she had certi fiedM aka leb ’s b irth cert ifica te. The trialcourt denied t

he motion f

or
reco nsi der atio n. On appeal, Ridl ey argues that the tri al court e rred when it concluded that Makaleb is no t H awkins’s heir at l aw because Hawkins “signe d a sworn st atement att esting to [hi s] parent -chi ld re lat ionship with Makale b” and “ef fect ivel y” signed the chi ld’s birt h ce rtific ate. W e di sag ree. OC GA § 53 -2-3 pro vide s in re levan t part: (2) (A) A chil

d born out of

wedlock may not

inheri t from or through t he child’s father , the other ch ildr en o f the father, or any pat ernalkin by reas on of th e pa tern al k ins hip , u nl ess : (i ) [a ] court of c ompetent juri sdiction has entered an order declari ng the child t o be legitimate, unde r the aut

horit y of Code Sect ion 19-7- 22 or such ot her aut ho rity a s may be p rov id ed by law; (ii ) [a] court of competent j urisdiction has oth er wise entered a court order establishing paternity; (iii) [t]he father has executed a sworn state m ent sig ned by him at testing to t he par ent-c hild relatio nsh ip ; (iv) [t ]he fathe r has si

gned the birth certificat e of the ch ild ; or(v) [t]here is other c lear and convinc ing evi dence that the child is the child of the father. (Emp hasis supplied.)5 Ridley has no t raised, and we therefore do n ot address , whether there was

“otherclear and convi ncing evi dence” be fore t he pro bate court

that Makaleb was “the chi ld o f” H aw kin s fo r pu rpo ses of O CG A § 53 -2- 3 (2 ) (A ) (v ). 8 Ridley has not assert ed, e ither bel ow or on appeal, that t he execution of that porti on of the pater nity acknowledgment purport ing to l egit imate the chi ld succ eeds in doing so such that the requirements l aid out in OCGA § 53-2-3 do not apply. Under
our responsibil ity to r ead this and other stat utes “ not in i solation, but in t he conte xt of the other stat utory pr ovisi ons of which it i s a part, ” Abdel-Samed v. Dailey , 294 Ga. 758, 763 (2) ( 755 S E 2d 805) (2014) (citat ion omitted), we also note that neither OCGA § 1 9-7 -22 (g) (2) no r O CG A § 19 -7- 46 .1 specifi es that a voluntary acknowledgment

of paternity and/or legitimation renders the re quir em ents of OCGA § 53-2-3 inapplica

ble as a matte r of

law. As t

here wer e no court

procee dings begun before Haw kins’s death either t o legitimate Mak aleb or otherwise to establish pater nity under sub sectio ns (2 ) (A ) (i) and (i i), the onl y questi ons remai ning ar e thus whe therthe pat erni ty acknowl edgment amounte d to “a s worn stat ement si gned by ” Hawkins “attesting to the pare nt-c hild r elationship” or whethe r the prese nce of Hawk in s’s name on the bi rth c ert ifi cate amounted t o his si gnatur e for pur poses of OC GA § 53-2-3 (2 ) (A). 59

1. The p atern ity ack now ledg me nt sig ned by R idley and Ha wk ins w as no t a “sworn statement” for purpo ses of OC GA § 53-2-3 (2 ) (A). To swear is both “to ad minister an o ath to a per son ” an d “ to ta ke a n o ath .” Black’s Law Dicti onary, 9th e d. 20 09. T hus a sw orn statem ent, such as an affida vit, is “a stat ement under oath taken before a person having authority to adminis ter such oat h.” Sambor

v. Ke lley , 271 Ga. 133, 134 (1) ( 518 SE2d 120) (1999) (punctuation and footnot e omitt ed); see al so Shiver v. Norfolk-Southern Ry. Co ., 269 Ga. 168 (496 SE2d 903) (1998) (defining “t estimony” as “[a] state ment made by a witness under oath or affi rmation” (ci tat ion andpunctuation omitte d)). Both judges and notaries public have the powerto admini ster oaths. See OCGA § 15-1-3 (5) (“[e]v ery c our t” has pow er “to adm inister oath s in an act ion or p roce edin g pe ndin g the rein a nd in all othercases when it may be ne cessary in t he exercise of its powers an d duti es ”; OCGA § 45-17-8 (a) (grant ing notar ie s publi c authority t o “[w]i tness or attest signat ure or execut ion of d eed s an d o the r w ritten ins trum ent s,” to “[ a]dmini ster oaths and affirmati ons in all m atters in ciden tal t o thei r du ties as c om me rcial o fficers and all otheroaths and affirmati ons which ar e not by l aw requir ed to b e administ ered by a par ticu lar o ffice r,” an d to “[w ]itne ss a ffid avi ts u po n o ath or a ffirm atio n.”)
.10

Here, and despi te the pate rnit y acknowledgment ’s st atement that i t amounted to a n “aff

idavi t, ” ther e was no evi dence bef ore the probat e court , i ncludi ng the evidence prese nted on Ridl ey’s moti on for r econsi derat ion, to support the conclus ions thatDeLaine, the w itness to Ridley and H awkins’s exec ution of the pat ernity ackn ow ledg me nt, wa s a no tary p ublic or o ther o fficial su ch th at she had auth ority to administer

any oath to H awkins; that DeLaine ad ministered an oath on Haw kins; or thatthe ac knowledgment was a ctual ly notariz ed by her or any othe r p er so n. It fo ll ows thatthe probate court

did not err when it c oncluded t hat the pater

nity a cknowledgment
was nota “s worn s tate ment ” f or p urp ose s of

OCG A § 53-2- 3 (2) (A) (ii i). See Dockery v. Sta te , 287 Ga. 275, 277, (4) n . 2 (69 5 S E2 d 59 9) (2 010 ) (do cum ents entit led “affidavi ts” were not such be cause “ they were not exec uted wit h any of the legal formalit ies requi red of a vali d affidavi t”); OCG A § 45-17-6 (a) (“An official notarialact m ust b e do cum ented by th e no tary’s seal”) ; Hurt v. Norwest Mtg. , 260 Ga. App. 651, 654 (1) (a) (580 SE 2d 580 ) (2003) (an aff idav it of indige nce miss ing a
no taria l sea l inv alid ated the attes tatio n in the affid avi t). 2. Alth oug h do cum entar y an d testim onia l evid ence sho we d tha t Ge org ia birth certi ficat es do not normally bear the s ignature of e ither t he mother or the fat

her of the named child, it i s undisputed that H aw kins nev er sig ned M akale b’s b irth certi ficat e.6 OC GA § 53-2-4 (b) authori zes inheri tance from an int estate chi ld born out of wedlock to that child’s father or other pater

nal rel ations i f (1) a court has “entered an orderdeclaring t

he chil d to be l egit imate ” or (2) “ente red an or der es tabl ishi ng pater nity;” (3) “[t ]he father has, during the lifetime of the child, executed a sworn stat ementsigned by t

he fat he r attesti ng to the parent -chi ld re lat ionship;” ( 4) [t ]he father has, during the life time of th e child , sign ed th e birth certifica te of the chil d;” or (5) “[a] pre sum ptio n o f pa tern ity . . . has been e stabl ished and has notbeen rebutted by clea r an d co nv inc ing evi den ce.” 11 “[T] he ‘golden rule’ of statutory construction . . . requires us to fo llow the li teral language of the statute unles s it produces c ontradict ion, absurdi ty or such an inconvenience as to ins ure tha t the leg islat ure me ant som eth ing else .” Telec om*USA
v. Collins , 260 Ga. 362, 363-364 ( 1) (393 SE2d 235) ( 1990) (ci tat ion and punctuation omitted). We are not authorizedto ig nor e the pl ai n l an gua ge of OCGA § 53-2-3 ( 2) (A) (iv) requiring Haw kins to sign M alakeb’s b irth ce rtif icate in order to r ender Makaleb his h eir at law. See In re Esta te of G arre tt , 244 Ga. App. 65 (534 SE2d 843) (2000) (where there was no judicialdeterminati on of paternit y before a child ’s de ath intest ate, and where the fat her di d no t sign the chil d’s birth certi ficat e or execute a
sworn statement of paternity before that ev ent, a pro bate c our t’s find ing o f pate rnity after the ch ild’s d eath did not satisfy the requirements of O CG A § 5 3-2-4 (b)); 6 State
v. M. A. Ba rnett , 136 Ga. App. 122, 123 (220 SE 2d 730 ) (1976) (absen ce of affiant’s signature from a se arch warrant requi red suppr essi on of the evidence s eized underthat
wa rran t).12

Because Hawkins neit

her exe cuted a

sworn state ment of paternit y nor signed Malakeb ’s birth certifica te bef ore h is dea th, the trial co urt d id no t err w hen it concluded that Malakeb w as not Haw kins’s heir at law. OCG A § 5 3-2-3 (2) (A ) (iii) , (iv); see al so Esta te of G arre tt , 24 4 G a. A pp. a t 65 ( puta tive fa ther’s failure to establish paternit

y before chil d’s death precluded father’s inherit ance from thatchild). Judgment

affir me d. B arn es, P . J., co ncurs. Boggs, J. , conc urs fully and spec ially
.1 The genera l st atement in All ifi v. Raider , 323 Ga. App. 510, 512 ( 746 SE2d 763) (2013 ) (physi cal pr eced ent o nly) , that “[a ] father 's right to legitim ate his child is absolute, subjectonly to the quali ficat ion that t he natural mother may object ,” i s not binding prece dent, Court of Appea ls Rule 33 (a), and is ba sed upon a 1974 dec isi on con stru ing for me r G a. C od e A nn . §7 4-1 03
. A14A0468. IN RE ESTATE OF H AWK INS.

B OGGS , Judge , conc urri ng fully and speci all y. I concu r with th e ma

jo ri tyandal l t

hat is sa idth er e. I wr it e t o r ei te rate my
c oncerns abo ut the unin tend ed co nseq uen ces o f the a dm inistra tive leg itima tio n process. Rife with frailties, th e pro cess is unq uestio nab ly ineq uitab le and susc eptib le to fr aud, in ir

reconc ila ble conf lic t with the body of

Georgia l aw on legi timation and adopti on, and potential ly violative o f the co nstitu tiona l pro tection s gu aran teed to biologi cal f

ather s and the ir c hildr en. Before 20 05 , l egit imati on of a chi ld was re posed in t he disc ret ion of t

he superi or court under OCGA § 19-7-22 ( a), or of the juveni le cour t under OCGA § 19- 7-22 (d). In here nt in th is statutory fram ew ork is the r ecog nition that “ [i]n m akin g this deter minati on, the cour

t must e xamine the benef its that might fl ow to the c hild i f he
were legi timat ed and to consi der the lega l conse quences of the gr ant of

the petiti on”
an d may o nly be r evers ed for an abuse of discr eti on. 1 (Cit ati on and punctuation2

om itted .) Cald

wel l v . Mea dows , 312 Ga. Ap p. 70, 71 (1) (717 SE2d 668) (201 1). Th is judicia l oversi ght inc ludes an inquiry into whether the biologi cal fat her has abandoned his o ppo rtun ity inte rest, his fitness as a parent, and the best interestof th e ch ild. I d.;
see also Binns v. Fairnot , 292 Ga. App. 336, 337 (665 SE2d 36) (2008). On occasi on, this inquiry dem ands a finding that legitimation is notin the best inter est of the chi ld. The court may find, f

or example, that

the att empted legi timation is forsome improper purpose, that

the f athe r has a hist ory of i ntra ctabl e subst ance abus e, ment al hea lth, fam ily violence or criminal history issues that pose an unrea sonable ris k to the chil d, or that the chil d’s cur

rent stat us quo should not

be disr upted. The most imp ortant aspect of this statutory framework is the obj ecti ve scr utiny affordedby judicialoversight and the mandate t hat peti tions should onl y be granted when doing so i s in t

he best inte rest of the chi ld. However, i n dire ct cont ravent ion of this proces s, OCGA § 19-7-21.1 (b), and its predec essor , OCGA § 19- 7-22 (g) (2 ), perm it legi timation via a volunt ary, adminis trative proces s without any overs ight wh atso eve r, jud icial or o the rw ise. Ga. L. 2005, p. 149 1 §1 created for the first time anon-judi cialproces s for t he acknowledgment

of pa te rn it y a nd l eg itim at io n, co di fi edinOCGA § 19-7-22 ( g) (2):2 I ackn ow ledg e w ith tha nks the co ntrib ution s of J am es B . Ou tma n, Es q. w ith

regard to the legi slative hist ory of the admini str ati ve legit imation process, as well as some of th e pr ob lem s it h as c reat ed. J am es B . Ou tm an, Adopt ion Law U pda te , Institu te of C ontin uing Jud icial E duc ation , July 24, 2013; James B. Outman, Special Topics in Ado

ption La w & Pra ctice in Ge org ia , Inst itute of Continuing Legal Educati on, November 7, 2008.

3 The Georgia Department of Hum an Resou rces and the O ffice of Child Supp ort Services supported this l egislation, but t he latt erackno wledged i n testimony during the 200 8 leg islative sessio n tha t wh ile the n um ber o f illegitim ate ch ildren in Ge org ia had decre ased af

ter the 2005 enactment, t

he amount of child support rec eived on th eir behalf did not increa se. Id. at 3. 3 In any volu ntary ackn ow ledg me nt of pater nity which has be en made and has not been resc inded pur suantto C ode Sec tion 1 9-7 -46 .1, w hen both the mother and father f reely agre e and consen t, the chi ld may be legit imated by the inclusion of a statemen t indicating a voluntary acknowledgment

of le gitimation. The proponent s of

this amendment cont ended that le gitimation was ne cessary for the father of a chi ld born out

of wedlock t o obtai n visi tat ion and t o provide for inherit ance, but th is is not accurat e. 2 See, e .g. , OCGA § 53-2-3 (2) ( A), enumer ati ng five met hod s b y wh ic h afath er mayle gi timat e; OCGA § 19 -7- 51 , providi ng for visi tat ion privi leges upon a dete rminat ion of pa te rn it y, albe it by c our t o rd er ; O CGA § 9-7 -22 (c), sp ecifica lly providi ng forinherit ance. James B. Outman, “SpecialTopics in Adoption Law & Practic e in Georgia,” I ns tit ute of Continui ng Legal Education, November 7, 2008, at 2- 3. 34 The majority corr ectly note s that Ridl ey has not rais ed below or on appeal a

contention that an acknow ledgmen t of legitim ation satisfies or renders unnecessary the requi rements set f

orth i n OCGA § 53-2-3. It is al so co rr ec t t

ha t n ei th er

OCGA § 19-7-22 ( g) (2) nor OC GA § 1 9-7 -46 .1 speci fy that a voluntary acknowledgment of pater nity or legitimation obviates those requirem ents. But the obviou s con flic ts, a s we ll as allthe other probl ems noted here, exist whether r aise d by this appell antor by oth ers i n th e fu ture . 4 In 2008, the General Assembly added to SB-88, the “C are o f a G ran dch ild A ct,”
a pro vis ion esta blis hin g a n ew Co de s ectio n, O CG A § 19 -7- 21 .1, w ith a more elabo rate proce dure fo r the adminis trative acknowledgment of pat erni ty and legi timation. Ga. L. 2008, p. 667, §4. The Departmentof Vital Records promulgate d
a revis ed fo rm, F orm 394 0, in resp ons e to th ese ch ang es. B ut the legisla ture fa iled to delete OCGA § 19-7-22 (g ) (2) and failed to amend other related Code sections,
creating yet more statutory conflict in the are as of guardianship and inheritance. For example, the appeal before us is a direct result of the fai lure to amend the i nheritance statut es to co nfo rm w ith O CG A § 19- 7-2 1.1. S ee O utm an, Special Topics , supra, at 8-11. 4 M oreo ver, th e rev ision pro vide d tha t “[v]o lu ntary acknowledgment of legi timation shal l not a

uthori ze the father t o rece ive custodyor visitation until there is a judicial determination of custody o r visitati on,” OC GA § 19-7-2 1.1 ( e), app aren tly negating the origi nal expr essed intent ion of t he proponent s to pr ovide f or vis itation.5 Th is con clusio n i s support ed by the 2008 amendment, whic h added the

provis ion that the making of a false st atemen t on the volunt ary ac knowledgment of legi timation “shall be punishab le as an act of false stat ements and writings under Code Secti on 16-10-20, ” OCGA § 19-7-21. 1 (f) , as well a s the r evise d form p rom ulg ated by the Department of VitalRecords, which provides a no tary certifi cate form for each signature. But it seem s altog ether unlik ely that an oath is administered and the form s igned inth e pr es enc e of a no tary ineve ry in st anc e, par ti cul ar lyinth e e nvi ro nme n t of a ho spital m atern ity dep artm ent . Ou tm an, Adoption La w U pda te , supr a, at 4. Nor does it s eem li kely, in my opini on, that anyviola tion o f this re quir em ent w ould ever be p ros ecu ted
.

6 I take thi s opportunity to cor recta misst atement

in Sau ls . W hile that cas e was decided in 2012, the pate rnity acknowledgment was e xecu ted in 200 5 an d thu s fell under OCGA § 19-7-22 (g) ( 2) rat her than OCGA § 19-7-21. 1. 5 Pursuant to O CG A § 19- 7-2 2 (g ) (2), a f orm styled “Pa ternity Ac kno wle dgmen t

- State of Georgia” was created by the S tat e Department of Vit al Recor ds and executedby Ridley and Hawk ins in 2007. The majorit y correctly concludes thatthe acknowledgment

as it existedat that t ime did not consti tute a “sworn st atement ” for purposes of O CGA § 53-2-3 (2 ) (A) (iii). 5 And it also corre ctly concludes that Hawkins did not in fact

“sign” the birth certificate as provided by O CG A § 5 3-2-3 (2) (A) (i v), a lthough Geor gia makes no appare nt provi sion f or him to do s o. In Sauls v. Atchi

son , 316 Ga. A pp. 792 (73 0 SE2 d 459) (20 12), 6 we noted that OC GA § 19-7-21 .1 (b) cir cumvents t

he saf eguards inher entin ourle gi timat io n s tatute , OCGA § 19-7-22, w hich requires a petition in Superior C ourt and a finding that6

legi timation is i n the best in terest o f the c hild. T here is no s tatu to ry ti me fr ame for the fi ling of

these forms and t

hus no meaningf

ul way for

the cou rts oratto rn eys to kno w whet her th e f orm has be ensi gne d. On occasi on this cause s the f iling of unnece ssary peti tions for l egit imati on, and cou ld pote ntially cause inconsis tent findings as well. In short, under OCGA § 1 9-7 -21 .1 , the mother and any male may agr ee – whethe r by mis take or by plan – to have someone other than the bi ological f ather signthis f

orm. An d a male who si mply signs a pre- print ed form i n the hospital (or within 12 months thereaf ter) i s by that minimal ac t al one placedon the sam e legal fo oting as a father whose paternity has been judic ially deter

mined with t

he benef it of formal notic e, e vidence and a heari ng at which the court must det ermine whether legi timation is in the best inter est of

the chi ld. Id. at793 n.1. In Sau ls , none of these issue s was pres ented s quarel y for r esolution by this cou rt, nor in Allif

i v. Raider , 323 Ga. App. 510, 513 ( 1), 515- 516 (746 SE2d 763) (2013) (Ray, J ., concurr ing spec ial ly and i n judg ment only), where the pot ential pr obl ems were note d again byboth the majori ty and the concurring opini on. But now , we ar e pre sented with a cas e in which these ant icipat ed problems come into clear er focus. See al so Ray v. Hann , 323 Ga. A pp. 45, 47 (74 6 SE2 d 600) (20 13). When, as here, the mother of a chil d born out of

wedlock and aman known not to b e the fat

her deliber ately misr epresent t he facts in an administrat iv e acknowledgment

of pat erni ty andlegi timation, signi fic ant har m could res ult not

only7

to the actual, biological father, but to the child as well. This may an d does o ccur without any judicialinquir

y, without any at

tempt bya factf

inder to det ermine actual pater nity by m eans of a D NA testor o therw is e, and without any fi nding that legi timation is in the child’s bestintere st, all in dir ect c onfli ct wit h OCGA § 19-7-22 (a) – (f.1 ). An d w hile in a part icul ar ca se it may be laudable andeven heroic for aman kno wn not to be the fa ther to acce pt the resp ons ibilities o f pare ntho od, th is should not
occu r with out s om e jud icial ov ersig ht. Opportunities for fraud and collusion abound in this fl awed scheme. No t only to establi sh a false paternit y to obtain dependent benefi ts, a s was allegedin this cas e, but for r evenge f

ollowi ng a failed relatio nsh ip, or f or m one tary g ain through obt aini ng contr ol over a m inor child ’s ass ets or claim for per sonal injury. Moreover, a man who signs th e f

orm bel ie vi ng h ims el f t o be th e f ather , b utlate r d et ermi nes th at he is not, may be b oun d to p ay ch ild su ppo rt and to reim bur se the State for p ublic assis tance paid to th e m oth er, w hile the act ual, b iolog ical fath er m ay b e exc used from his obligations. In all such cases, the opportunity to establish the true state of affair s and the best intere st of th e chil d, as well a s due proc ess of law for the chi ld and the biological father, are frustrat ed by these statutes.7 A deter min ation of p atern ity m ay b e set as ide b y a su perio r cou rt only i n a

child support

acti on and under stri ctly l imited ci rcumstances, and only when the father was unaware that he was not the biologi cal f ather and has no t “[s]igned a voluntary acknowledgment

of pat erni ty as pr ovided i n Code sect ion 19 -7- 46 .1.” OCGA § 19-7- 54 ( b) (5 ) (F). It a ppe ars th at a co llateral a ttack b ased upo n frau d, false sw earin g , m istake, or evidence newly discovered by a t hird party may be the only avai labl e method to decl are an adminis trative acknowledgment of pat erni ty and l egit imati on void when it is cl ear that it has been si gned by a no n-b iolog ical fath er. Se e gen erally In re W hite , 254 Ga. 678 ( 3 33 SE2d 588) (1985) ( mistake); see al so Venable v. Parker , 307 Ga. App. 880, 884 (706 SE2d 211) (20 11) (Dilla rd, J., co ncu rring fully and specially). 8 In esse nce, pa rties to an ac kno wle dgm ent ca n un ilaterally create a w holly fic titious fathe r-child relat ionship, which is tantamount to anadopti on without any of the procedural and due process safeg uards o f t he ad optio n statu tes fo r the a ctual, biologicalfathe r – n otice a nd a n op por tunity to be heard before his paren tal rights are terminate d – or for th e child ’s be st inter est an d na tural rig ht to h ave a relatio nsh ip with the biologic al father. This failure to take into account due process concerns, t he obligations and right s of the biological father and the rights of the child, could raise significant issues regarding the constitutionality of the administrative process. Mo reover, once a fraud ulen t adm inistra tive leg itima tion h as oc curre d, the re is
no procedur e un der G eorg ia law for “the de -le gitimation of a chil d” or “the dises tabl ishment

of paternit y.” Ghrist v. Fri cks , 219 Ga. App. 415, 419 ( 1) (465 SE2d 501) (1995), overru le d o n o the r gr ou nd s, Brine v . Shi pp , 291 Ga. 376, 380 (3) (729 SE2d 393) (201 2). 7 W hile it may be true that the administrative legitimation process9

has resul ted i n fewer i lle gitimate chi ldre n in Georgi a, i t has pr od uced a l itany of unintended co nsequen ces and con flicts with statutory law, all owed bound less opport unities for fra ud, a nd c an ar gua bly d eny fathe rs an d ch ildren their
con stitutio nally protected rights. Our appell ate c ourts have nei ther the means nor the autho rity to ad dres s the m yriad of p rob lem s occ asion ed b y this seem ingly we ll intentioned but flawed p rocess. As we noted in Sau ls , sup ra, “th is is for t he General Assembly, not thi s court , t o addres s.” Id. at 793 n. 1.