dissenting.
I must respectfully dissent from the majority opinion. In In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987), the court stated: “unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected.” Id. at 296. Although the father may abandon this interest, “[a]bsent an abandonment of his interest, a state may not deny a biological father a reasonable opportunity to establish a relationship with [the] child.” (Emphasis supplied.) Id. In this case, I agree with the trial court that the biological father did not abandon his opportunity interest in the child. Furthermore, I agree with the trial court that the appropriate standard to use in determining Davis’s right to legitimate his child is his fitness as a parent to have custody of his child.
1. The majority finds that “Davis’s ‘opportunity interest’ commenced in August 1994 about nine months before Denver’s birth.” Under the facts of this case, I cannot agree with this conclusion. The evidence shows that Davis did not learn of Denver’s existence until December 5, 1996. At the time of Denver’s birth, LaBrec, not Davis, believed the child to be his. Wolff did not tell LaBrec otherwise, nor did she tell Davis that she was carrying or had given birth to his son at that time. The record is simply devoid of evidence that Davis knew *317or should have suspected that Wolff had given birth to his son.9 The fact that Davis did nothing at that time to exercise his opportunity interest is thus not surprising. It defies logic and common sense to say, as does the majority, that the period of time in which Davis knew nothing of his son should be considered in determining whether Davis waived his opportunity interest. And the majority’s reliance on cases which say the opportunity interest begins at conception is somewhat misleading because in those cases the evidence clearly showed that the biological father knew about the child from conception or birth. For example, in Turner v. Wright, 217 Ga. App. 368, 369 (457 SE2d 575) (1995), the issue was whether the father’s actions during the mother’s pregnancy constituted a disregard of his opportunity interest. After simply noting that the biological father’s opportunity interest begins at birth, the court went on to consider the father’s actions “after [he] was aware he was to be a father.” (Emphasis supplied.) Id. The majority cites no cases, and I have found none, in which our appellate courts have held that the period of time to be considered in determining whether the biological father has abandoned his opportunity interest should include the period of conception when the father did not know a child had been conceived. To the contrary, this court has previously held that evidence that a biological father was unaware of the pregnancy or birth is relevant in determining whether the biological father abandoned his opportunity interest. Doe v. Chambers, 188 Ga. App. 879, 880 (1) (374 SE2d 758) (1988) (father who did not learn of child’s birth until she was two months old found not to have abandoned opportunity interest); Alexander v. Guthrie, 216 Ga. App. 460 (1) (454 SE2d 805) (1995) (father, who was aware mother of the child was pregnant and of the birth of the child, lost his opportunity interest by committing crimes resulting in his incarceration).
It follows that the relevant date for determining whether Davis waived his opportunity interest is December 5,1996, when Wolff told Davis he had a son. Although the majority asserts Davis’s response to the news was inaction and passivity, I do not agree with that characterization. According to Wolff, when she told Davis about his son, he “accepted responsibility for his son, indicated his desire to have a blood test to establish paternity, and sent me money when I asked for it.” Wolff further averred that she “did not serve [Davis] with formal notice of the custody action pending in Georgia concerning his son, *318nor did I provide him with information sufficient for him to intervene in said action.” In any event, Wolff averred that she had “informed” Davis that she would return with the child to Missouri and “cooperate” with legitimation proceedings. Although the majority asserts that Davis could not justify his “inactivity” by relying on the mother to protect his interest or that his pending military service did not excuse his “passivity,” I believe this conclusion somewhat ignores the reality of the situation. As I read the majority, upon learning he was a father, Davis was supposed to take immediate legal action or lose his opportunity interest to be a father to his child. But this is not a situation where Davis knew months before the child’s birth that he was going to be a father. And the record does not indicate that he understood the significance of the legal proceedings that were ongoing in Georgia or knew that because of those proceedings he had to act quickly or lose substantial rights in legitimating his child. And during this time the mentally unstable mother of the child was continuing to mislead both Davis and LaBrec, as well as the court. Surely a father in Davis’s position and in these circumstances should be accorded some opportunity to assimilate the information he has received and to determine what his next legal step should be. And I cannot simply ignore the fact that Davis’s military service would have some impact on his ability to deal with his situation. In sum, unlike the majority, I believe the circumstances surrounding the particular situation must be considered in determining whether a biological father has timely pursued his opportunity interest and nothing about this case convinces me the father lost his opportunity here. Given the circumstances, I believe that the trial court correctly determined that Davis did not abandon his opportunity interest, and the majority should not second-guess the trial court’s finding.
2. I also disagree with Division 2 of the majority opinion. The court in In re Baby Girl Eason held that if the biological father “has not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness . . . to have custody of the child.” Id. at 297. See also Turner v. Wright, 217 Ga. App. at 369-370 (2); Doe v. Chambers, 188 Ga. App. at 880 (1). “In such a case, the parent is entitled to custody of the child unless the third party shows by clear and convincing evidence that the parent is unfit.” (Citations and punctuation omitted.) Turner v. Wright, 217 Ga. App. at 370.
Thus, the trial court properly applied the fitness standard in this case, and I disagree with the majority’s conclusion that the trial court erred by not inquiring into and applying the best interest of the child standard. LaBrec established a relationship with the child, sane*319tioned by the court,10 because he believed he was the child’s father; Davis did nothing to intervene in that relationship or to establish his own relationship with Denver because he did not know the child existed. All of this happened because the mentally unstable mother of the child misled LaBrec, Davis and the court concerning the child’s paternity. Even reading In re Baby Girl Eason to hold that the standard to be applied when dealing with an unwed biological father who has not lost his opportunity interest should be decided on a case-by-case basis, I do not believe the facts of this case mandate application of the best interest standard. In this regard I note that the trial court’s order does not sever the relationship with LaBrec; it simply allows the child’s biological father the opportunity to develop a relationship with his child. I would not deny either the father or the child this opportunity. And because I find no merit to LaBrec’s remaining argument on appeal, I would affirm the trial court’s order.
Decided March 30, 2000 Lawrence D. Kupferman, Gregory D. Golden, for appellant. Fred L. Cavalli, M. Ayres Gardner, for appellee.I am authorized to state that Presiding Judge Andrews and Judge Ruffin join in this dissent.
As noted by the majority in footnote 6, LaBrec’s assertion in his brief that Davis may have had some knowledge about the pregnancy and the paternity of the child is unsupported by record citation and nothing I have found in the record supports that assertion. I would further note that although LaBrec’s brief contains numerous factual representations, it contains no citations to the record, in violation of Court of Appeals Rule 27 (a) (1).
Although the majority states on page 307 that LaBrec has been raising Denver since birth, it appears that Wolff was raising the child for the first year of his life and that LaBrec did not seek to legitimate Denver until he was slightly over a year old. Moreover, it also appears that LaBrec may have had reason to suspect that he was not Denver’s father prior to the February 1997 custody order.