In re J. M. S.

362 S.E.2d 56, 257 Ga. 630

• Court: Supreme Court of Georgia
• Decided: November 24, 1987
• Docket: 44740
• Status: Published

Opinions

Gregory, Justice.

In October 1984, petitioner filed a petition to legitimate JMS under the authority of OCGA § 19-7-22. The child’s mother was given statutory notice of the petition to legitimate, and filed responsive pleadings in opposition to the petition. Following a hearing the trial court denied the petition to legitimate. The Court of Appeals denied petitioner’s application for discretionary appeal, and we granted certiorari. We affirm.

The record in this case shows that prior to 1979 the parties were married and one son was born of the marriage. They divorced in 1979, but cohabited thereafter for a short time with the result that JMS was born in October 1981.¹ During the three-year period between the birth of JMS and the filing of the petition for legitimation petitioner made little effort to see or support JMS. There is some evidence to show that he saw JMS on occasion when he picked up the older child for visitation, but it is clear that petitioner has neither attempted to exercise parental authority over the child, nor has he demonstrated a substantial interest in the child. On the other hand, there is evidence to support the trial court’s finding that JMS is in a stable and loving home environment where his “mental and emotional needs” are being met by the child’s mother and her new husband.

The parties in this case agree that the issue is whether the trial court abused its discretion in determining that it was not in the best interest of the child to grant the petition for legitimation. In re Application of Ashmore, 163 Ga. App. 194 (293 SE2d 457) (1982); Mabry v. Tadlock, 157 Ga. App. 257, 259 (277 SE2d 688) (1981). The trial court found that “it is not in the best interest of the child to disrupt his stable family unit which exceeds any benefits which might flow to [JMS.]” We hold that the trial court did not abuse its discretion in this regard. See Best v. Acker, 133 Ga. App. 250 (211 SE2d 188) (1974).

The petitioner makes much of the trial court’s reference to the fact that petitioner is a Moslem, while the child’s mother is of the Christian faith. However, it is clear from reading the trial court’s order that this distinction was merely one of many factors considered by the trial court in making its decision. It is apparent that the trial court’s decision was not based, as petitioner alleges, on “discriminatory religious grounds.”

Judgment affirmed.

All the Justices concur, except Smith, J., who dissents.

1 While the mother of the child initially denied that petitioner was the father of JMS, she now concedes that he is the child’s father. HLA tests show a 98.8% probability that petitioner is the father of JMS, and the trial court made a finding of fact that petitioner is the father of JMS.