Legitimation Against the Marital Presumption: Georgia Supreme Court Leaves Best‑Interests Framework Intact and Calls for Legislative Clarification

Introduction

In Marquez v. Aguirre, Case No. S25C1128 (Oct. 15, 2025), the Supreme Court of Georgia denied a petition for certiorari from a Court of Appeals decision addressing a biological father’s attempt to legitimate a child born to a married woman. The case sits at the intersection of the State’s strong marital presumption of legitimacy, the statutory legitimation process available to biological fathers, and the constitutional interests of parents and children.

The concurring opinion by Justice Bethel (joined by Justice Colvin) recognizes the “weighty interests” implicated: the definition of “father” under Georgia law; the scope of constitutional rights associated with parenthood; the State’s authority to define and allocate those rights; and an “apparent gap” in Georgia’s statutes concerning whether and how a stranger to a marriage may challenge the statutory presumption of legitimacy. Although Justice Bethel viewed the governing law as unclear, he found the Court of Appeals’ approach to be a workable system not inconsistent with controlling precedent and therefore concurred in the denial, emphasizing that any rebalancing of these policy-laden issues should come from the General Assembly.

The parties’ positions, as distilled from the concurrence, are emblematic of recurring family-law conflicts: the married couple (the mother and her husband, the legal father by virtue of the marital presumption) wish to maintain their intact family and parental status, while the biological father—an outsider to the marriage—seeks to legitimate and be recognized as the child’s legal father. The child, as Justice Bethel poignantly observes, is fortunate to have multiple caring adults but is caught within a statutory framework that lacks clear instructions for courts when the marital presumption meets a biological claim of paternity.

Summary of the Opinion

The Georgia Supreme Court denied certiorari. All Justices concurred in the denial except Justice LaGrua, who dissented from the denial, and Justice Land, who was disqualified. No opinion on the merits was issued. As a result, the Court of Appeals’ decision in Marquez v. Aguirre, 375 Ga. App. 202 (2025), remains the controlling decision in this case.

Justice Bethel’s concurrence explains why he nevertheless agrees with denying review:

• He identifies significant ambiguity in Georgia’s statutory scheme—particularly how (or whether) a third party to the marriage may challenge the marital presumption and whether a legitimation petition in this posture should be treated as an implicit attempt to terminate the legal father’s rights.
• He characterizes the current Court of Appeals framework—requiring proof of biological paternity and then applying a best-interests-of-the-child analysis under OCGA § 19-7-22—as a “workable system” not inconsistent with Georgia or U.S. Supreme Court precedent.
• He urges the General Assembly to address the statutory gap and provide explicit guidance, warning that judicial improvisation risks policy-making from the bench.

Analysis

Procedural Posture and What the Denial Means

A denial of certiorari by the Supreme Court does not endorse the reasoning below, but it leaves the Court of Appeals’ judgment in place. In practical terms, Georgia trial courts will continue to follow the Court of Appeals’ approach in this class of cases unless and until the General Assembly revises the statutes or the Supreme Court later grants review and decides the issue on the merits.

Precedents and Authorities Cited

• OCGA § 19-7-20 et seq. (Marital presumption of legitimacy)
  • OCGA § 19-7-20(a) creates a strong presumption that a child born to a married woman is the legitimate child of the marriage.
  • OCGA § 19-7-20(b) allows rebuttal in limited circumstances, emphasizing that where the husband had a possibility of access to the wife, the presumption is strong and the contrary must be shown by “clear” proof.
• OCGA § 19-7-22 (Legitimation)
  • Allows a biological father “of a child born out of wedlock” to file a petition for legitimation; since 2016, § 19-7-22(d)(1) directs courts to decide petitions under the best-interests-of-the-child standard.
  • § 19-7-22(c) contemplates joining a non-biological legal father as a party, suggesting that the statute anticipates cases in which a child already has a legal father.
• OCGA § 19-7-23 (Definition of “child born out of wedlock”)
  • Includes a child who is the issue of the wife’s adulterous intercourse during wedlock or a child not legitimate under § 19-7-20. The disjunctive “or,” combined with the robust marital presumption, creates ambiguity when a child is both the product of adulterous intercourse and presumptively legitimate under § 19-7-20.
• OCGA § 15-11-310 (Termination of parental rights)
  • Lists exclusive grounds for terminating parental rights (consent, mistreatment, prolonged non-support, abandonment, dependency with risk of harm). Justice Bethel questions whether treating legitimation as a functional termination action is compatible with these enumerated grounds.
• Georgia Supreme Court cases
  • Brine v. Shipp, 291 Ga. 376 (2012): In discussing jurisdiction, said a biological father’s legitimation petition for a child born in wedlock “is in essence a petition to terminate the parental rights of the legal father,” but did not hold that the termination statute applies.
  • Mathenia v. Brumbelow, 308 Ga. 714 (2020): Noted superior courts’ jurisdiction encompasses termination issues beyond adoption, including matters pertaining to legitimacy; also recognized unwed fathers’ constitutionally protected “opportunity interest” to develop a relationship with their children.
  • Davis v. LaBrec, 274 Ga. 5 (2001): Characterized such petitions as efforts to “delegitimize a legitimate child” and disrupt an existing family unit, underscoring the sensitivity of these cases.
  • Baker v. Baker, 276 Ga. 778 (2003): Confirmed the best-interests standard for legitimation but cautioned that legitimation law was intended to establish, not sever, legitimacy.
  • Matter of J.M.S., 257 Ga. 630 (1987): Applied the best-interests standard to legitimation.
  • Brooks v. Parkerson, 265 Ga. 189 (1995): Recognized parental liberty and privacy interests under the Georgia Constitution.
• Georgia Court of Appeals cases
  • Marquez v. Aguirre, 375 Ga. App. 202 (2025): Proceeded under the legitimation statute rather than dependency or adoption law; applied the best-interests-of-the-child standard.
  • Sheppard v. Milsaps, 374 Ga. App. 480 (2025): Applied best interests in reviewing a legitimation petition.
  • Jefferson v. O’Neal, 364 Ga. App. 23 (2022): Recognized that a “higher” inquiry applies when a child already has a legal father, but the operative standard remains the child’s best interests.
  • In re C.L., 284 Ga. App. 674 (2007): Highlighted concerns about custody disruptions in comparable scenarios.
• U.S. Supreme Court cases
  • Michael H. v. Gerald D., 491 U.S. 110 (1989): A plurality concluded that when a child is born into an intact marriage, a State may constitutionally give categorical preference to the husband’s parental status (via a conclusive or strong marital presumption) over a biological father’s competing claim.
  • Lehr v. Robertson, 463 U.S. 248 (1983): Recognized an unwed father’s constitutionally protected “opportunity interest” to develop a relationship with his child when he has grasped that opportunity.
  • Troxel v. Granville, 530 U.S. 57 (2000): Affirmed parents’ fundamental liberty interest in the care, custody, and control of their children.
  • Moore v. City of East Cleveland, 431 U.S. 494 (1977), and Smith v. Organization of Foster Families, 431 U.S. 816 (1977): Emphasized the constitutional importance of family life, noting that “family” is not exclusively defined by biology.

Legal Reasoning and Themes in the Concurrence

Justice Bethel’s concurrence does not resolve the merits, but it carefully maps the fault lines:

• The marital presumption remains robust. Under § 19-7-20(a)-(b), a child born to a married woman is presumed legitimate, and rebuttal traditionally required clear proof (at common law, often non-access or impotence). Modern genetic testing complicates this historical approach, yet the statute has not been updated to articulate how DNA evidence interacts with the “access” principle in legitimacy challenges.
• The legitimation statute speaks in terms of children “born out of wedlock.” But a child can simultaneously be the issue of adulterous intercourse (fitting § 19-7-23) and, by operation of § 19-7-20, be legally legitimate. The text’s disjunctive “or” and the presumption’s strength raise a threshold question: does Georgia law actually authorize a stranger to the marriage to attack the marital presumption through a legitimation petition at all? Some textual cues (e.g., § 19-7-22(c)’s joinder requirement) suggest yes; the historical solicitude for the marital presumption suggests caution.
• Is legitimation in this posture a de facto termination? Brine v. Shipp described such petitions as “in essence” termination actions, but the Court of Appeals decisions have not applied the termination statute (§ 15-11-310). Instead, they have proceeded by:
  1. Determining biological paternity; and
  2. Applying a best-interests-of-the-child analysis under § 19-7-22(d)(1), with heightened sensitivity where a legal father already exists.
  Justice Bethel deems this approach workable and not inconsistent with state and federal precedent, while cautioning that if legitimation effectively severs the legal father’s rights, the absence of an express termination standard in the legitimation statute is a policy gap the legislature should address.
• Risk of a “fatherless child” outcome. If the presumption of legitimacy is displaced but the biological father fails to legitimate (e.g., because DNA excludes him), the child could be left with no legal father—contradicting Georgia law’s clear intent to resolve legitimacy promptly and conclusively.
• Constitutional fenceposts. The concurrence canvasses U.S. Supreme Court doctrine: Troxel protects the legal parent’s liberty; Lehr protects an unwed father’s opportunity interest once he forms a substantial relationship; Michael H. permits a state to prefer the marital father over a biological father when the child is born into an extant marriage. These cases frame the permissible range of state policies, underscoring the need for legislative—not judicial—line-drawing.

What Rule Emerges After This Denial?

No new binding rule was announced by the Supreme Court, but the denial leaves undisturbed the Court of Appeals’ functional framework for these cases:

• Proceed under the legitimation statute (OCGA § 19-7-22), not the termination statute (OCGA § 15-11-310).
• Require proof of biological paternity where disputed.
• Decide legitimation based on the best interests of the child, with heightened care when a legal father already exists due to the marital presumption.
• Recognize the tension with Brine’s “in essence termination” language, but treat that as non-dispositive dicta, given that the termination statute’s criteria have not been imported into legitimation determinations.

Justice Bethel’s concurrence explicitly invites the General Assembly to clarify the statutory scheme if this framework does not reflect the State’s intended policy.

Likely Impact

• For trial courts and practitioners:
  • Expect legitimation petitions by biological fathers in wedlock-birth scenarios to be adjudicated under § 19-7-22’s best-interests standard, not § 15-11-310’s termination grounds.
  • Join the legal father as a party, as contemplated by § 19-7-22(c), and build a record addressing:
    • Biological paternity (if contested),
    • The child’s relationships with the legal father and biological father,
    • Stability, continuity, and the child’s welfare,
    • Any risk that the child could be left without a legal father.
  • Anticipate constitutional arguments: the legal father’s Troxel/Brooks interests, the biological father’s Lehr opportunity interest, and the State’s latitude under Michael H. to privilege marital families.
• For the General Assembly:
  • Clarify standing and timing: who may challenge the marital presumption, within what window, and under what evidentiary standard (e.g., clear and convincing evidence of non-paternity or non-access; role of DNA).
  • Codify the sequence and standards: whether rebuttal of the marital presumption must occur before, during, or as part of the legitimation process; whether any rebuttal implies or requires termination; and what standard governs any severance of the legal father’s rights.
  • Prevent “fatherless child” outcomes: require conditional dispositions that ensure a child is not left without a legal father if a presumption is displaced but legitimation fails.
  • Harmonize definitions: reconcile § 19-7-20’s presumption with § 19-7-23’s definition of “born out of wedlock” to eliminate the current disjunctive ambiguity.
  • Consider temporal finality: whether the marital presumption becomes conclusive after a defined period or circumstances (e.g., intact marriage without contest within a certain time), consistent with constitutional constraints.
• For families:
  • Absent legislative change, stability considerations embedded in “best interests” will continue to play a central role. The presence of an existing legal father will likely weigh heavily, but it is not an absolute bar to legitimation by a biological father.

Complex Concepts, Simplified

• Marital presumption of legitimacy (OCGA § 19-7-20):
  • Default rule: A child born to a married woman is presumed to be her husband’s legal child.
  • Rebuttal is possible, but Georgia law has long favored family stability and sets a high bar, historically tied to proof of non-access or incapacity; the modern role of DNA testing is not expressly defined in this statute.
• Legitimation (OCGA § 19-7-22):
  • Legal process by which a biological father of a child “born out of wedlock” seeks to be recognized as the legal father.
  • Georgia courts decide based on the child’s best interests; since 2016, that standard is codified.
• Termination of parental rights (OCGA § 15-11-310):
  • Formal severance of the legal parent-child relationship, permitted only on specific statutory grounds and typically requiring clear and convincing evidence.
  • Georgia courts have not imported this termination framework wholesale into legitimation cases where a legal father already exists.
• Biological father’s “opportunity interest” (Lehr v. Robertson):
  • An unwed biological father gains constitutional protection when he actively establishes a substantial relationship with his child; the State may recognize that interest, but it can be outweighed by other legal interests, including the marital presumption.
• Michael H. v. Gerald D.:
  • The U.S. Supreme Court approved a state’s decision to prefer the legal father within an intact marriage, even over a biological father’s competing claim, signaling that robust marital presumptions can be constitutionally permissible.
• Best interests of the child:
  • A holistic standard examining the child’s welfare, including stability, relationships with caregivers, and long-term developmental interests; in this context, courts pay special attention when a legal father’s established relationship is at stake.

Conclusion

Marquez v. Aguirre does not create new doctrine; rather, the Georgia Supreme Court’s denial of certiorari preserves, for now, a Court of Appeals framework that treats a biological father’s petition to legitimate a child born into an intact marriage as a legitimation proceeding decided under the best-interests-of-the-child standard, not as a termination case that must satisfy OCGA § 15-11-310. Justice Bethel’s concurrence underscores that this approach is workable and not inconsistent with state and federal precedent, but it also highlights a significant statutory gap: Georgia’s Code does not clearly explain who may challenge the marital presumption, on what standard, in what sequence relative to legitimation, or how to avoid leaving a child without a legal father if a presumption is displaced.

Key takeaways:

• Until the General Assembly acts, expect trial courts to continue using the best-interests framework in legitimation petitions brought by biological fathers even when a legal father exists by virtue of the marital presumption.
• Brine’s suggestion that such cases are “in essence” termination actions remains influential but not operationalized through § 15-11-310’s grounds.
• The constitutional landscape permits Georgia to value both the stability of marital families and the opportunity interests of committed biological fathers; choosing where to set those policy boundaries is, as Justice Bethel stresses, a legislative task.

In short, the Court leaves the existing Court of Appeals approach in place and strongly signals that the legislature should clarify the pathway—and the guardrails—for reconciling biological paternity claims with the State’s venerable marital presumption of legitimacy.