We granted petitioner Jonathon Davis’s petition for certiorari to determine whether the parental fitness or best interests of the child test applies to Davis’s petition to legitimate his biological child. Because we hold that the standard to be applied under the circumstances of this case is the best interests of the child test, we affirm the decision of the Court of Appeals. Respondent Kevin LaBrec and Elizabeth Wolff had been involved in a personal relationship for approximately six years when Wolff gave birth to a child in 1995. LaBrec was present at the child’s birth and is named on the birth certificate as the child’s father. In July 1996, LaBrec became the child’s legal father when he obtained a court order legitimating the child pursuant to OCGA § 19-7-22. Wolff supported LaBrec’s legitimation petition and acknowledged LaBrec as the child’s biological father in an affidavit filed in support of the petition. After Wolff, who has a history of mental instability, attempted suicide in July 1996, LaBrec initiated an action to obtain full legal and physical custody of the child. In that custody proceeding Wolff asserted for the first time that LaBrec was not the child’s biological father, although she later entered into a consent agreement whereby she consented to LaBrec becoming the child’s sole permanent physical and legal custodian.
In August 1997, Davis, who claimed he did not discover until December 5, 1996 that he is the child’s biological father, filed a complaint to establish paternity, to set aside the previous legitimation order, and to legitimate and obtain custody of the child.1 Davis proceeded to a March 1999 hearing at which the trial court, relying on In re Baby Girl Eason, 257 Ga. 292 358 SE2d 459 1987, determined that Davis did not waive his opportunity interest to develop a relationship with the child and that Davis was fit; declared the child to be Davis’s legitimate son; changed the child’s last name to Davis; and granted Davis visitation rights. Also relying on Eason, the Court of Appeals reversed and remanded the case to the trial court for it to consider the preclusive effect of the earlier legitimation and custody orders and, if it determined that it could properly address Davis’s legitimation petition, to apply the best interests of the child standard. LaBrec v. Davis, 243 Ga. App. 307 2 534 SE2d 84 2000.
