WILSON et al.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
and Jack Wilson appeal a trial court's order granting the
petition of Benjamin Moore to legitimate the minor child, M.
S. W. and denying Mr. Wilson's petition for adoption of
M. S. W. The Wilsons contend, inter alia, that the trial
court erred by concluding that Mr. Wilson was not the legal
father of M. S. W. and failing to consider the effect of Mr.
Wilson's administrative legitimation of M. S. W. on
Moore's legitimation petition. For the following reasons,
we vacate the judgment of the trial court and remand for
proceedings consistent with this opinion.
trial court made the following findings of fact:
This case involves the minor biological child of [Moore] and
defendant [Ms. Wilson]: [M. S. W.], born September 12, 2011.
The minor child is now [five] years old and resides with [Ms.
Wilson]. This case has a very unusual and convoluted factual
The facts in the case are basically undisputed. [Moore] and
[Ms. Wilson] had a short term relationship that included one
sexual encounter on December 25, 2010. After the morning of
December 26, 2010, [Moore] and [Ms. Wilson] did not see each
other again until September 17, 2015, which was the date that
depositions were taken in this case. The evidence shows that
[Moore] and [Ms. Wilson] had a brief telephone conversation
in late December, 2010, which was followed by a brief email
exchange in mid-January, 2011. Following those contacts, the
parties did not have any contact with each other until a
telephone conversation between the parties regarding this
subject action that took place in April, 2015. This was the
first time that the parties had any contact or discussion
concerning the minor child.
The evidence shows that in late December, 2010, [Ms. Wilson]
resumed her relationship with the intervenor, [Mr. Wilson].
[Ms. Wilson] discovered that she was pregnant sometime in
late January, 2011. The minor child was born in September
2011, and [Ms. Wilson] and [Mr. Wilson] were married on
February 29, 2012. The evidence shows that [Ms. Wilson] and
[Mr. Wilson] were not married when the child was conceived or
when the child was born.
The evidence shows that sometime during the year ,
[Moore] received information that [Ms. Wilson] had a
child.Additionally, he received some information
that there was the possibility that the minor child could be
his biological daughter. Later in 2014, [Moore] contacted
legal counsel as to his possible rights and a course of
action regarding the minor child. Sometime late in 2014,
[Moore] decided that he wanted to determine if he was the
biological father of the child and requested his counsel to
contact [Ms. Wilson]. [Moore] had previously received
information that a DNA test by [Ms. Wilson] showed [Mr.
Wilson] to be the biological father.
The evidence shows that on February 19, 2015, [Moore's]
attorney sent a letter to [Ms. Wilson] requesting a DNA test
to determine if [Moore] might be the father of the minor
child. This letter was followed up by a phone conversation
from [Moore] to [Ms. Wilson] in April of 2015. The evidence
shows that [Moore] filed [the] Petition for DNA Genetic
Paternity Testing and Legitimation on June 19, 2015. [Ms.
Wilson] filed an answer on July 1, 2015. On July 1, 2015 [Mr.
Wilson] filed a Motion to Intervene and to Dismiss the
Petition of DNA Paternity Testing. As a part of this motion,
he also filed a Petition for Legitimation.
On July 9, 2015,  consent order[s] [were] entered between
the parties allowing for [Mr. Wilson] to intervene in the
case and also ordering DNA testing. The evidence shows that
the DNA test showed that [Moore] was the biological father of
the minor child, [M. S. W.].
On October 28, 2015, [Mr. Wilson] filed an amendment to his
answer and responsive pleadings adding a Counterclaim for
Adoption of the minor child.
a hearing, the trial court determined that Moore had not
abandoned his opportunity interest to have a relationship
with M. S. W. The trial court further found that there was no
evidence that Moore would be an unfit parent and granted
Moore's request for legitimation of M. S. W. The trial
court stated that the ruling was in the best interests of M.
S. W. The trial court also concluded that "[Mr. Wilson]
is not the biological father of [M. S. W.], nor is he the
legal father of the minor child by virtue of marriage,
legitimation, or adoption."
Wilsons contend, inter alia, that the trial court erred by
concluding that Mr. Wilson was not the legal father of M. S.
W. and failing to consider the effect of Mr. Wilson's
administrative legitimation of M. S. W. on Moore's
legitimation petition. We agree.
father' means a male who . . . [h]as legitimated a child
pursuant to [OCGA § 19-7-21.1]." OCGA §