
    68859.
    DEPARTMENT OF HUMAN RESOURCES v. BRINSON.
   Deen, Presiding Judge.

The Department of Human Resources brought a petition for child support recovery on behalf of a minor child born March 29, 1983, alleging that Brinson was the father of the child, that he failed to provide support for the dependent child, and that the State provided support for the child and was entitled to reimbursement in the amount of $765. Brinson answered denying he was the father of the child and attached a copy of a divorce decree entered November 23, 1983, showing that the child’s mother failed to answer his complaint for a divorce and that a final judgment was granted. Brinson moved for summary judgment based on the pleadings and the copy of the divorce decree which was attached to his answer. The Department of Human Resources appeals from the grant of Brinson’s motion. Held:

On summary judgment the evidence is construed against the movant. Giant Peanut Co. v. Car. Chemicals, 129 Ga. App. 718, 719 (200 SE2d 918) (1973). Under OCGA § 19-7-20 (a) (Code Ann. § 74-101), a child is presumed to be legitimate if the parents are married when the child is born. Both parents have a joint and several duty to provide support for their minor children. OCGA § 19-7-2. This obligation does not cease upon separation or divorce of the parents. Mell v. Mell, 190 Ga. 508 (9 SE2d 756) (1940). Appellee’s argument that the divorce decree is res judicata as to issues of legitimacy and child support is without merit. A custodial parent cannot waive a child’s right to support from the non-custodial parent. Crumb v. Gordon, 157 Ga. App. 839 (278 SE2d 725) (1981). Here, the mother failed to answer the complaint and this failure cannot prejudice the child’s right to support. As appellee’s pleadings and evidence also failed to rebut the presumption of legitimacy, the trial court erred in granting Brinson’s motion for summary judgment.

Decided September 4, 1984.

Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, H. Perry Michael, First Assistant Attorney General, Carol Atha Cosgrove, Senior Assistant Attorney General, M. Allen Price, Assistant Attorney General, Mary Foil Russell, for appellant.

Thomas M. Odom, for appellee.

Judgment reversed.

McMurray, C. J., and Sognier, J., concur.  