dissenting.
Because I disagree with the majority’s interpretation of OCGA § 19-7-1 (b.l) as not providing a means by which the original legal father may seek custody, I respectfully dissent.
This Code section provides:
Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for *678determination in any such case shall be what is in the best interest of the child or children.
OCGA§ 19-7-1 (b.l). As the original legal father of the child, Ibelieve that Lloyd is a “parent” for purposes of this Code section. To interpret it otherwise means that once a legitimation petition is granted, if it is not in the best interest of the child for the legitimated father and the mother to have custody of the child, the child cannot remain in the home of the original legal parent, even though the child is well cared for and has bonded with that parent. In this case, it means that the child must be removed from her home and placed with strangers.
The Code section governing legitimation provides that the petition may also include claims for visitation or custody. OCGA § 19-7-22. Accordingly, the petition for legitimation and custody is one action, although in this case the superior court gave the decision on custody to the juvenile court. And, despite the mandate of the legitimation Code section, it appears that the superior court granted the legitimation petition after receiving the results of the paternity test and did not make any determination as to whether legitimation was in the child’s best interest. There was no evidence on this issue at the hearing, and the order contains no finding as to the best interest of the child or the effect such a decision would have upon the child. See Ghrist v. Fricks, 219 Ga. App. 415, 420-421 (465 SE2d 501) (1995).
After granting the legitimation portion of the petition, the superior court transferred the case to the juvenile court to determine the issue of custody. The evidence at the custody hearing showed that Lloyd had cared for C. L. almost from the time of her birth, loved the child, and wanted to keep the family together until the mother was released from prison and could take steps to be reunited with her husband and child. There was also expert testimony that C. L. had closely bonded with Lloyd and could experience problems if taken from him.
There was evidence that it would not be in the child’s best interest to be given to Newell, and there was evidence that Newell was not fit to care for or support the child by himself.
In the trial court’s order awarding custody to Ralph Lloyd, the court held that Lloyd had been C. L.’s only caregiver, that he also cared for another child of Brandy Lloyd (C. L.’s mother), and that he took both children to visit with Brandy in prison and was maintaining a relationship for both children with their mother. The court concluded, relying on the “best interest of the child” standard set out in OCGA§ 19-7-1 (b.l), that it was in the best interest of C. L. to remain in the custody of Lloyd, the only father she had ever known, and perhaps eventually be reunited with her mother.
*679Although Baker v. Baker, 276 Ga. 778 (582 SE2d 102) (2003), concerned a legitimation petition, I believe its reasoning is applicable in this case. “The law allowing the presumption of legitimacy to be rebutted was never intended to sever a child’s ties with his or her legal father.” Id. at 782. In Baker, it was the biological mother who sought to “delegitimize” the child from the legal father, after DNA evidence showed that he was not the biological father. Id. at 780. The trial court held that
even though it may be in the best interest of the child for [the legal father] to be the father, the best interest of the child is not the test in this situation. It would be a contradiction to say the presumption of legitimacy can be rebutted by clear and convincing evidence but it is in the best interest of the child not to rebut the presumption of legitimacy.
(Punctuation omitted.) Id.
The majority in Baker rejected this conclusion, stating “this Court has recently held that the ‘best interests of the child’ standard should be applied when a party seeks to delegitimize a legitimate child and to break up an existing legally recognized family unit already in existence.” (Punctuation omitted.) Id. The court noted that the legal father had developed a parental relationship with the child since her birth and had accepted the responsibilities of fatherhood. Id. at 781. The Court held that because the underlying action sought delegitimation and the dissolution of a family unit already in existence, the interests of all parties concerned were best protected by application of the best interest of the child standard. Id.
The dissent in Baker points out that this decision “oversteps the bounds of judicial action” because the “legislature enacted a standard to be applied in every case in which paternity of a child born in wedlock is challenged, a strong presumption of legitimacy which can be overcome by clear and convincing proof.” Id. at 784. The majority in this case makes this same argument, contending that OCGA § 19-7-1 (b.l) provides no standing for the original legal father once the child has been legitimated by the biological father. Although this interpretation of the statute appears to be legally correct and is the more well-reasoned approach, I believe that the Supreme Court considered and rejected this position in Baker.
Veal v. Veal, 281 Ga. 128 (636 SE2d 527) (2006), is instructive. In that case, unlike the instant one, the husband and wife were not married until after the child was born and both were aware that the husband was not the biological father. The Supreme Court acknowledged that it was unfortunate that the husband, as a stepparent, could not seek custody of the child against the wishes of the biological *680mother. Id. at 129. In doing so, the Court distinguished this case from Baker, stating, “Although the husband in Baker was not the biological father of the child, he was considered the legal father,’ and this Court determined that the ‘best interests of the child’ standard should be employed to determine the custody arrangements for the child.” Id.
Decided March 29, 2007. Stanley R. Durden, for appellant. Curtis G. Shoemaker, for appellee.In light of the above, I would hold that Lloyd had standing to seek custody under OCGA § 19-7-1 (b.l) as a “parent” under the Code section and the juvenile court correctly decided this case under the “best interest of the child” standard and concluded that custody should remain with Lloyd. As the presumptive legal father, Lloyd has developed a parental relationship with the child since her birth; was voluntarily named the child’s father on the birth certificate; has lived with the child as father and daughter since birth; has fully accepted the responsibilities of fatherhood; and has developed deep familial and psychological bonds with the child through daily association. See Baker, supra at 781.