Children are frequently born to couples that aren’t married. While there was once a stigma, and even a derogatory term, associated with this, having children without a formal marriage has become incredibly common and accepted. Unfortunately, the law has not caught up and presents an obstacle to children when it comes to their legal rights. In order to gain all of the legal benefits and rights as a child “born in wedlock”, a child must go through a legal process called legitimation.
What is Legitimation?
Legitimation and paternity are not the same thing. The purpose of a legal paternity finding is primarily to establish a man as the father of a child for purposes of seeking and enforcing child support orders. Legitimation, on the other hand, focuses on the child and the child’s rights. Specifically, the legitimation has the following effects:
- Imposes “all of the lawful parental privileges and rights” on both parents, as well as all legal obligations;
- In the eyes of the law the child has been born in wedlock;
- Gives the parents the rights to inherit from the child in case of the child’s untimely death;
- Entitles the child to receive the inheritance, succession, or distribution rights regarding their parents’ real and personal property.
How Does Legitimation Occur?
Legitimation is not necessary if a child is born out of wedlock, but the biological parents later marry. In this circumstance, legitimation is automatic and no further legal proceedings are necessary. However, a legitimation proceeding is necessary in the following scenarios: (1) a child is born out of wedlock and the parents do not get married; and (2) a married woman has a child by a man who is not her husband.
Unlike paternity, legitimation is a voluntary action on the part of a father. In fact, only a father can file a legitimation action to legally recognize and bestow the aforementioned rights upon a child. This is done be filing a verified written petition and opening a special proceeding in which the mother, child, and potentially the mother’s husband, are parties to the proceedings. If the court issues a decree of legitimation, a new birth certificate will be issued that reflects the child’s father.
New Direction Family Law
New Direction Family Law is a family law firm that provides effective guidance and representation for all family law matters. If you need help with an issue arising from a separation, divorce, property division, alimony, child custody, or child support matter, contact us today. We understand that this is your life and that you need help. We take our duties seriously and will work hard to help you reach a resolution. Call New Direction Family Law today at (919) 719-3470 to schedule an appointment, or contact us at our website.
Sarah J. Hink
New Direction Family Law