This divоrce action involves the termination of the parental rights of the husband, who was the child’s legal father for 13 years. The husband is appealing the superior court’s order severing his rights as legal father аnd granting the biological father’s petition to legitimate. Because we conclude that the superior court did not have subject matter jurisdiction to terminate the legal father’s parental rights, we reverse.
Gwendolyn Brine and William Robert Brine were married in August 1997, just weeks after a relationship between Gwendolyn and Brian Shipp ended. When Shipp found out in the spring of 1998 that Gwendolyn was pregnant, he asked hеr whether he was the father, and she said no. The child was born in May 1998, and Brine was listed on the birth certificate as the father. Approximately 18 months later, Shipp again saw Gwendolyn and asked whether he cоuld be the father. She said that she was married and the child was not his. For the next ten years, Shipp made no more inquiries and took no further action concerning the child’s paternity. He saw the child occasionally as a family friend, but did not attempt to develop a father-son relationship or provide any substantial financial or emotional support. In August 2010, a year after William filed for divorce, Gwendolyn informed Shipp that she thought he was the child’s biological father; subsequent DNA testing confirmed that fact.
In February 2011, Shipp moved to intervene in the divorce action and filed a petition for legitimation. Following a hearing, the superior court found that Shipp had not waived or abandoned his opportunity interest in developing a relationship with the child and that it was in the child’s best interest to grant the legitimation petition. As part of the divorce decree, the superior court terminated William Brine’s rights as the legal father, granted Shipp’s petition to legitimate, and awarded Shipp primary physical custody of the child. William Brine filed an application for discretionary appeal, which this Court granted as having possible merit.
1. Because of jurisdictional concerns, we asked the partiеs to address whether the superior court had subject matter jurisdiction to terminate the parental rights of the legal father in the legitimation proceeding that was brought as part of this divorce action. See OCGA § 15-11-28 (a) (2) (C). Although the parties have not raised any objections to jurisdiction, subject matter jurisdiction cannotbe waived or conferred on a court by agreement. Amerson v. Vandiver,
(a) Exclusive original jurisdiction. Except as provided in subsection (b) of this Code section, the court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action:
(2) Involving any proceedings:
(C) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article I of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child.
The predecessor of this provision was enacted into law in 1971 as part of the new Juvenile Court Code of Georgia. Ga. Laws 1971, pp. 709, 712 (codifiеd at Ga. Code Ann. § 24A-301 (b) (3)).
2. Based on this statute, we have previously concluded that the superior court lacks jurisdiction to terminate parental rights in a divorce and child custody case. Cothran v. Cothran,
Quite aside from the controlling constitutional provisions regarding the subject-matter jurisdiction of our courts, there are comрelling public policy reasons to keep these child-sensitive issues in the juvenile courts, where the best interests of the child are paramount and protections exist, such as the appointment of guardians ad litem, OCGA § 15-11-98 (a), that serve to guarantee those best interests are considered.
Amerson,
In some cases, the superior courts have terminated parental rights outside the adoption cоntext, but the appellate court decisions in those cases do not address the issue of subject matter jurisdiction. See Taylor v. Taylor,
3. Whether the superior court had subject matter jurisdiction to sever the legal father’s parental rights in this case depends on whether the issue is considered primarily as one involving legitimation or one involving termination. Compare OCGA § 15-11-28 (a) (2) (C) (juvenile courts have exclusive original jurisdiction over proceedings involving termination except in connection with adoption) with OCGA §19-7-22 (a) (superior courts have jurisdiction over legitimation petitions filfed by father of child born out of wedlock). In making this determination, each petition must be judged on its own merits with the pleadings “construed according to their substance and function and not merely as to thеir nomenclature.” In re M. C. J.,
Looking at the substance of the issue here, rather than its nomenclature, the biological father’s petition to legitimate a child who was born in wedlock is in essence a petition to terminate the parental rights of the legal father. This case started out originally as a divorce and child custody dispute between the husband and wife. The focus shifted to the child’s paternity when the biological father intervened in the divorce action. After the trial court determined that the biological father had not abandoned his opportunity interest, the issue became whether the superior court should grant the petition to legitimate the child. Since all children born in wedlock are deemed legitimate by law, the superior court was faced with a situation where the biological father of a child sought to delegitimate the child and sever an existing father-child relationship. See Baker v. Baker,
When, as here, a biological father’s petition to legitimate a child born in wedlock can only be granted by first terminating the legal father’s parental rights, we conclude that the superior cоurt does-not have jurisdiction over the termination decision. See Amerson v. Vandiver,
Judgment reversed.