In the Interest of C. L.

Barnes, Chief Judge.

This case arose after Jeff Newell, the biological father of C. L., filed a petition for legitimation and custody of the child against Brandy and Ralph Lloyd, the child’s mother and legal father. The superior court granted Newell’s legitimation petition, and transferred the custody issue to the juvenile court. That court considered whether Newell or Ralph Lloyd should have custody of C. L., and determined that it was in the child’s best interest to grant joint custody to both men, with primary physical custody to Lloyd and visitation to Newell. Because Newell became the child’s legal father when the superior court granted his legitimation petition, and our laws grant Ralph Lloyd no rights to custody in this situation, we reverse the juvenile court order and direct it on remand to award custody to Newell.

C. L. is the daughter of Brandy Lloyd who is married to Ralph Lloyd. On January 16, 2005, while married to Lloyd, Mrs. Lloyd gave birth to C. L., who was fathered by Jeff Newell. C. L. was immediately taken into Department of Family and Children Services custody because Mrs. Lloyd tested positive for cocaine. The juvenile court held a hearing on a deprivation petition on January 27, 2005, where Newell attempted to intervene to assert his paternity, but the court refused to allow him to participate in the proceeding. The court returned C. L. to the custody of Ralph Lloyd. Shortly afterward, Brandy Lloyd went to prison, where she remained throughout the proceedings in this case.

Within two months, Newell filed his petition for legitimation and custody in the superior court. After a DNA test confirmed that Newell was the biological father, the superior court granted Newell’s petition for legitimation without determining whether it would be in the child’s best interest. The court held that C. L. was the child of Newell and Brandy Lloyd, born out of wedlock under OCGA § 19-7-23 (2). That statute defines a “child born out of wedlock” as a “child who is the issue of adulterous intercourse of the wife during wedlock.” The court declared C. L. to be legitimate and capable of inheriting from Newell in the same manner as if born in lawful wedlock, and then transferred the custody issue to the juvenile court because it had previously considered the issue.

The juvenile court awarded joint custody to Newell and Ralph Lloyd, with primary physical custody to Lloyd and visitation to Newell. The court acknowledged that Lloyd was not one of the limited number of related third parties who may seek custody from a parent under OCGA § 19-7-1 (b.l) (which lists grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent), but ruled that “applying such a rigid construction to the instant situation would ignore the unique and important role that Mr. Lloyd has played in [C. L.]’s life.” Applying the “best interest of the child” standard set out in OCGA § 19-7-1 (b.l), the juvenile court awarded joint custody of C. L. to Newell and Ralph Lloyd, with primary physical custody to Ralph Lloyd.

1. Newell contends that the juvenile court erred in its application of OCGA § 19-7-1 (b.l), because Lloyd was not one of the limited number of related third parties who may seek custody from a legal parent. We agree. The unappealed legitimation order by the superior court found that C. L. was “born out of wedlock,” and declared her to be the legitimate child of Newell under OCGA§ 19-7-23 (2). Once the court made that determination and Lloyd did not appeal the order, Newell became C. L.’s legal father in Lloyd’s place. Having allowed that decision to stand, Lloyd has no means of challenging Newell’s custody as our law stands now.

This case illuminates the gaping hole in our family law regarding custody between a biological father and a legal father. The issue is not unusual, as shown by many appellate decisions.¹ Lacking clear statutory direction, the parties and the courts have been left to figure out the best way to address the issue. The parties and both courts in this case acted with the best of intentions, but because the former legal father is not given the same status as a “grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent” under OCGA § 19-7-1 (b.l), the juvenile court is left with no discretion to determine which placement would be in the child’s best interest. The biological father has already legitimated the child, presumably “replacing” the former legal father and becoming the legal father himself. The statutes do not contemplate a child having two legal fathers. Once C. L. was legitimately Newell’s child, our statutes provide Lloyd with no standing to argue that the child’s interest would be best served by continuing custody with him.

The decision in Baker v. Baker, 276 Ga. 778, 782 (582 SE2d 102) (2003), does not require a different result. The parties in Baker were in a different posture before the court. There, a husband and wife were getting a divorce, and the biological father intervened during the ensuing custody battle, seeking to legitimate the child and gain custody himself. In that context, the trial court was able to determine whether it was in the child’s best interest to grant the biological father’s legitimation petition and award custody to him or deny the petition and let the legal father remain the legal father.

What Baker and other appellate decisions make clear is that in determining whether to grant a legitimation petition, trial courts may consider the best interest of the child and deny the petition under certain circumstances, even if the petitioner is in fact the biological father of the child. See id. at 780-781 (2); Davis v. LaBrec, 274 Ga. 5, 7-8 (549 SE2d 76) (2001); Ghrist v. Fricks, 219 Ga. App. 415, 420-421 (1) (465 SE2d 501) (1995). What those decisions do not permit, and what trial courts cannot do, is grant the legitimation petition and then treat the situation as one where the child has two legal fathers vying for custody, as was done in the present case.

We do not intimate an opinion as to which man would be the better parent for this child, but simply find that Lloyd had no standing to seek custody in this case. With the advent of DNA testing capable of determining paternity as a scientific fact, the old family paradigms have given way. Before we could compare DNA, a putative father had to overcome a high hurdle to replace the legal father. But we are now capable of determining with one blood test that the man married to the child’s mother, even years after a child’s birth, is not really the child’s “father.” Under this process, a man who parented a child all of the child’s life could lose any right to custody to a biological father who has never even spoken to the child, through a procedural fault such as the one in this case.

Our law provides no clear process for resolving this issue, leaving some courts and parties straining to fit the new reality into the old legal structure. This deficiency results in tragedy for some and uncertainty for all. Only the legislature can fix this problem, by addressing how a nonbiological father may seek custody or at least visitation of a child he has raised and to whom he has bonded. For these reasons, we reverse the juvenile court’s award of joint custody to Lloyd and Newell, and direct it on remand to award custody to Newell.

2. In view of our ruling in Division 1, the remainder of Newell’s enumerations of error are moot.

Judgment reversed and case remanded with direction.

Johnson, P. J., Blackburn, P. J., Miller, Ellington and Bernes, JJ., concur. Andrews, P. J., dissents.

1 See, e.g., Veal v. Veal, 281 Ga. 128, 129 (636 SE2d 527) (2006); Baker v. Baker, 276 Ga. 778, 779 (1) (582 SE2d 102) (2003); Davis v. LaBrec, 274 Ga. 5, 7 (549 SE2d 76) (2001); King v. Lusk, 280 Ga. App. 40 (633 SE2d 350) (2006); Ghrist v. Fricks, 219 Ga. App. 415, 420-421 (1) (465 SE2d 501) (1995); Brooks v. Carson, 194 Ga. App. 365, 367 (2) (390 SE2d 859) (1990), overruled on other grounds, Mayor &c. of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 17 (1) (441 SE2d 63) (1994).