Adamavage v. Holloway

• Decision Date: 03 November 1992
• Docket Number: No. A92A1443,A92A1443
• Citation: 206 Ga.App. 156,424 S.E.2d 837
• Parties: ADAMAVAGE v. HOLLOWAY et al.
• Court: Georgia Court of Appeals

Page 837

424 S.E.2d 837

206 Ga.App. 156

ADAMAVAGE v. HOLLOWAY et al.

No. A92A1443.

Court of Appeals of Georgia.

Nov. 3, 1992.

Keith A. Pflepsen, Albany, for appellant.

Robert H. Revell, Jr., Albany, for appellees.

ANDREWS, Judge.

Tammy Adamavage, the mother of the child, appeals the trial court's order awarding paternity to Holloway and legitimating the child arising out of the following facts.

On September 5, 1991, Holloway filed a paternity action, alleging that he was the child's father and seeking to have Adamavage submit to a blood test to resolve this issue. On September 23, 1991, the court ordered that both parties submit to blood testing in an effort to determine paternity.

Although the "temporary order" is not in the record, apparently on November 15, 1991, prior to Adamavage obtaining representation, the trial court held a hearing and entered a temporary order. That order found that the paternity of the child had been established by the results of blood tests and granted Holloway visitation rights and ordered him to pay child support.

On December 3, 1991, Adamavage filed an answer in which she admitted that Holloway was the biological father of the child, but she stated that her child was illegitimate and that Holloway therefore had no visiting or custody rights. She claimed that she had exclusive parental custody and control of the child. Thereafter, on December 5, 1991, Holloway filed an amendment to his petition in which he sought to legitimate the child. Adamavage filed an answer within 30 days to that pleading, in which she admitted that Holloway was the child's father, but objected to Holloway's attempted legitimation of the child. ¹ Thereafter she filed a pleading specifically objecting to the legitimation of the child.

On February 10, 1992, the case came for a hearing. During the hearing, the court ordered stricken Adamavage's answer to the petition to establish paternity. The court also entered an order which legitimized the child, determined that Holloway was the father of the child, and set forth Holloway's visitation and child support obligations. Adamavage filed an application for discretionary appeal in response to this order, which we granted.

1. Adamavage raises two enumerations of error. First, she contends that the trial court erred in refusing to allow her to present her objections regarding the legitimation. At the hearing in February Adamavage attempted to present evidence regarding the best interests of the child. The transcript of the hearing establishes that the trial court did not allow the mother to present her objections to the legitimation.

"In deciding whether to grant or deny the legitimation petition, the court must consider the best interest of the child and is not bound by the desires and contentions of the parents. [Cit.] In making this determination, the court must examine the benefits that might flow to the child if she were legitimated and to consider the legal consequences of the grant of the petition." In re Application of Ashmore, 163 Ga.App. 194, 195(4), 293 S.E.2d 457 (1982). "We have long held that when a child is born or conceived in wedlock there is a presumption of legitimacy. The legislature has enacted a similar rule but has provided that the strong presumption of legitimacy may be disputed. To overcome the presumption, the proof must be 'clear.' OCGA § 19-7-20(b)." In re White, 254 Ga. 678, 679(1), 333 S.E.2d 588 (1985).

The procedural requirements which the father must follow to legitimate a child are set forth in OCGA § 19-7-22, and the mother's right to object to such proceedings has been clarified by various cases. " '[T[he father's right to legitimate is absolute subject only to the qualification that the natural mother may object and if she...