When is a child born out of wedlock and when is a child legitimate?

A child is “born out of wedlock” if the child’s parents

  • were not married when the child was conceived,
  • were not married when the child was born, and
  • have not married since the child was born.

A child is automatically considered legitimate if the child was born when the parents were married. If a child was conceived during the parents’ marriage and they divorced before the child was born, that child is still considered legitimate. If parents marry after a child is born, that child is considered legitimate.

What is legitimation?

Legitimation is the legal process that fathers use to establish parental rights to their children who were born out of wedlock. Without legitimation, such fathers have no right to custody or visitation of those children (although the father can be made to pay child support). Without legitimation, mothers have sole custody of children born out of wedlock. Also, children born out of wedlock do not automatically have the right to inherit from their fathers. (Note that with legitimation a father still needs a custody or visitation order to have access to the child.)

What is NOT legitimation?

Besides legitimation, there are several ways to establish that a man is the biological father of a child. However, unless a man has legitimated his child, he has not established his parental rights to his child. Here are some examples of things that are NOT a legitimation:

  • enrolling the child in school,
  • the child lives with he father,
  • being named the father in a paternity test,
  • agreeing to or being ordered to pay child support,
  • having the father’s last name, or
  • signing the child’s birth certificate.

How do you legitimate a child?

There are 2 ways to legitimate a child:

  1. Through the courts:  The father can file a Petition for Legitimation with the courts. The mother must be formally notified and she has the right to attend the court hearing. Fathers who file such a Petition do not have the absolute right to have the judge sign an order legitimating the child. The court will only legitimate the child if the court believes that the legitimation is in the child’s best interests
  2. By marriage:  If the father and mother marry after the birth of the child, the child is legitimated automatically by operation of law.  A Petition for Legitimation does not need to be filed with the courts in this case.

NOTE – Administrative Legitimation:  Between 2005 and 2016, both parents could sign a voluntary Acknowledgement of Paternity form and agree in that form to legitimate the child.  However, the law has changed and that type of legitimation is no longer available.  Even if legitimation was done with an Acknowledgment of Paternity, the mother still continues to have the sole right to custody and visitation until a court orders a different custody or visitation arrangement. The father must file a separate petition with the court to ask for custody or visitation.

Other than legitimate the child, what else can the court do?

In most (if not all) legitimation cases, the court will order child support. The father may also petition for:

  • legal and physical custody rights;
  • reasonable visitation rights;
  • change the child’s last name; and
  • have the father’s name added to the child’s birth certificate.

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