GA Code § 19-7-54 (2021)
2021 Georgia Code|Title 19 - Domestic Relations|Chapter 7 - Parent and Child Relationship Generally|Article 3 - Determination of Paternity|§ 19-7-54. Motion to Set Aside Determination of Paternity

  Unless otherwise specified in this Code section, 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 or state court that entered the order and shall include:   An affidavit executed by the movant that the newly discovered evidence has come to movant's knowledge since the entry of judgment; and   The results from scientifically credibleparentage- 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.     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:   The genetic test required in paragraph (2) of subsection (a) of this Code section was properly conducted;   The male ordered to pay child support has not adopted the child;   The child was not conceived by artificial insemination while the male ordered to pay child support and the child's mother were in wedlock;   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   The male ordered to pay child support with knowledge that he is not the biological father of the child has not:   Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;   Acknowledged his paternity of the child in a sworn statement;   Been named as the child's biological father on the child's birth certificate with his consent;   Been required to support the child because of a written voluntary promise;   Received written notice from the Department of Human Services, any other state agency, or any court directing him to submit to genetic testing which he disregarded;   Signed a voluntary acknowledgment of paternity as provided in Code Section 19-7-46.1; or   Proclaimed himself to be the child's biological father.       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.     In any case when the underlying child support order was issued by a court of this state or by the Department of Human Services and is being enforced by the Department of Human Services, an individual who is involved in the Department of Human Services' enforcement of such order and who intends to file a motion as provided for in subsection (a) of this Code section may request a genetic test from the Department of Human Services, contingent upon advance payment of the genetic test fee. Such request shall be accompanied by a statement setting forth that the requirements to set aside a determination of paternity described in paragraphs (2) through (5) of subsection (b) of this Code section are met. The Department of Human Services may deny such request if:   Genetic testing was previously completed;   The child was adopted either by the requester or the other individual involved in the enforcement by the Department of Human Services;   The child was conceived by means of artificial insemination; or   The Department of Human Services has previously offered genetic testing and the requester refused the opportunity for such testing at that time.     In any case when the nonrequesting individual does not consent to genetic testing, the requesting individual may petition the court to ask for such testing of the appropriate individuals.     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. In any case when the underlying order was obtained by the Department of Human Services, a court granting the motion to set aside a determination of paternity may relieve the obligor of responsibility for any future or past due amounts, or both, owed to the state. The court may also relieve the obligor of the same that is owed to any other person or entity so long as the obligor adds that person or entity to the underlying motion and provides that person or entity with notice of the action. In all motions brought under this Code section when there is any amount owed to the state, the Department of Human Services shall be made a party. Failure to include the Department of Human Services as a party shall prevent the waiver of any amount owed to the state.   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.     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.   If the mother of the child or the male ordered to pay child support willfully fails to submit to genetic testing, or if either such party is the custodian of the child and willfully 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.   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.     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.     (Code 1981, §19-7-54, enacted by Ga. L. 2002, p. 596, § 1; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2015, p. 1433, § 3/HB 568; Ga. L. 2018, p. 160, § 1/HB 344.)    The 2018 amendment,  effective July 1, 2018, substituted the present provisions of subsection (d) for the former provisions, which read: "In any case when the underlying child support order was issued by a court of this state or by the Department of Human Services and is being enforced by the Department of Human Services, a movant may request a genetic test from the Department of Human Services, contingent upon advance payment of the genetic test fee by such movant. In any case when the custodian of the child does not consent to testing, a movant may petition the court to ask for testing of the other parent and the child or children."   Law reviews.   - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 103 (2015). For note on the 2002 enactment of this Code section, see 19 Ga. St. U.L. Rev. 132 (2002).   JUDICIAL DECISIONS   Attempt to rebut presumption of legitimacy by mother.    - Mother failed to rebut the presumption of legitimacy raised by a child's birth during the marriage pursuant to O.C.G.A. §§ 19-7-20 and19-8-1(6) since the mother and husband knew that another man was the biological father of the child, the husband was listed with the mother's consent on the child's birth certificate as the child's father and had always provided financial and emotional support for the child, and since, if the husband had attempted to rebut the presumption of legitimacy the husband would have still been required to make child support payments. Baker v. Baker, 276 Ga. 778, 582 S.E.2d 102 (2003).   Child's best interest must be considered.    - Trial court did not err in denying a wife's motion for genetic testing of her husband in order to delegitimize their child based on a determination of the child's best interest pursuant to O.C.G.A. § 19-7-54. The wife came forward with no evidence that delegitimization would be in the child's best interest, and the husband and son shared a very strong bond. Williamson v. Williamson, 302 Ga. App. 115, 690 S.E.2d 257 (2010).   Res judicata proscribed reconsideration of paternity.    - Trial court's order requiring that an alleged father and a mother submit to paternity blood testing was erroneous because the doctrine of res judicata clearly proscribed the trial court's reconsideration of the issue of paternity; an unappealed and unmodified final order establishing paternity and child support, which was predicated on the parties' settlement agreement and paternity acknowledgment expressly consented to by the father, adjudged that he was the father of the mother's child, and while the father moved to set aside the final order, the trial court found that he had failed to meet his burden of disestablishing paternity under O.C.G.A. § 19-7-54 and denied the motion. Venable v. Parker, 307 Ga. App. 880, 706 S.E.2d 211 (2011).    Cited in Cothran v. Mehosky, 286 Ga. App. 640, 649 S.E.2d 838 (2007).   RESEARCH REFERENCES   Am. Jur. 2d.   - 41 Am. Jur. 2d, Illegitimate Children, §§ 13 et seq., 86.   C.J.S.   - 14 C.J.S., Children Out-of-Wedlock, §§ 71, 72, 95 et seq., 124.