In re J. M. S.

Smith, Justice,

dissenting.

This Court has consistently held that an application to legitimate a child is a separate and distinct issue from the final decision of who shall have custody and control of the child. Despite allegations in another case that the father who sought to legitimate his child had no love for the child, brought the petition in bad faith, was a criminal, had not contributed to the child support, and was an immoral and degraded character in every respect, the Court of Appeals affirmed the trial court’s grant of the father’s motion for new trial and wrote: “We might state also that this is not a question involving the disposition of custody of the child. The Superior Court of DeKalb County may or may not approve the adoption of the child, which proceeding is now pending in that court. The disposition of the child is yet to be *632finally determined. That is a question far apart from the proceeding of the father to legitimatize the child. He may yet, or anyone else, may appear in the adoption proceedings and testify as to the best interest of the child. The court may award the custody of the child to some third person on a final hearing, having in mind only the welfare of the child. This may be done regardless of the desires of either the father or the mother of the child.” (Emphasis supplied.) Bennett v. Day, 92 Ga. App. 680, 689 (89 SE2d 674) (1955). As correctly noted in Bennett, the best interest of the child standard does not come into issue until after the legitimation has been completed and the final decision on the disposition of the child is being made. Later in Sims v. Pope, 228 Ga. 289, 291 (185 SE2d 80) (1971), this Court reaffirmed its position that legitimation and custody are separate and distinct issues. “The fact that children have been legitimated does not ipso facto immunize their father from a proper showing that the children should be removed from his custody. . . . [U]pon legitimation the father stands in the same position as any other parent as to his custody being subject to challenge for good and legal cause. See in this connection Bennett v. Day, 92 Ga. App. 680 (3) (89 SE2d 674).”

As noted above, legitimation is one issue and custody is another. The only right to be decided in the legitimation action is whether or not the putative father is the biological father of the child. If so, the child should be allowed to be legitimated. The custody of the child who is living with his mother is not changed upon legitimation. Any change in custody can come about only if a subsequent custody action is filed and the court finds at that point that it is in the best interest of the child to make a change in custody. Thus, the trial court’s finding that it was “not in the best interest of the child to disrupt his stable family unit which exceeds any benefits which might flow to [him,]” is erroneous. Legitimation alone does not award custody to the father.

As stated in Hughes v. Parham, 241 Ga. 198, 202 (243 SE2d 867) (1978) affd. 441 U. S. 347 (99 SC 1742, 60 LE2d 269), “[t]he state has a legitimate interest in encouraging fathers of illegitimate children to legitimate the child by petition or by marrying the mother.” This is the only way the child can ever inherit from his father. The public policy of this state is to encourage fathers to legitimate their children. If a father wishes to legitimate his child, he should be allowed to do so.

This Court has expressed the public policy of the state in attempting to declare illegitimate children capable of inheriting from their fathers even in cases in which there was no formal legitimation proceeding but where there was clear and convincing evidence that the deceased father was the biological father of the child. See Prince v. Black, 256 Ga. 79 (344 SE2d 411) (1986); and Thompson v. Brown, 254 Ga. 191 (326 SE2d 733) (1985). For goodness sake, the child’s *633sake, and the state’s sake, we must uphold the state’s public policy and allow a father to legitimate his child. Only after the legitimation does the question of custody arise and at that point the all important inquiry is what is in the best interest of the child. Prior to that time the public policy of this state dictates that the important inquiry is whether or not the putative father is or is not the biological father.

Decided November 24, 1987. R. Glen Galbaugh, for appellant. Gail Tusan Joyner, for appellee.