Legitimacy of Children Born to Unmarried Parents

Here's a summary of the various ways states have addressed legal standards of proof of paternity.

Most states and the federal government have moved away from using the words "legitimate" and "illegitimate" in differentiating between children whose parents are married or not married. Some states have adopted the Uniform Parentage Act, which says that "the parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." Other states have modified versions of the Act in place, but either way, many states have now abandoned outdated notions of legitimacy.

Even in the states that have adopted this Act, however, it's still crucial to know who a child's parents are. This is because when it comes to inheritance, child support, custody, adoption, and many other areas of family law, the rights and duties of parents are clearly stated. And don't think that a father's refusal to sign a paternity statement will get him off the hook for paying child support. If a father doesn't voluntarily sign a paternity statement, the state will go to court to establish that he is the father and collect child support.

How to Determine Paternity

Being named father on a birth certificate isn't always adequate proof to a court that the named man is the father. A lawsuit to have a man declared the father of a child is called a paternity or support action. It can be brought by either the mother or the father. Advances in blood and DNA tests make it possible to determine paternity with better than 98% accuracy, and to disprove it with 100% accuracy.

In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court held that states may set up different standards of proof necessary to establish paternity, as long as the standards are not completely arbitrary.

Standards of Proof of Paternity in States Adopting the Uniform Parentage Act

In the states that have adopted the Uniform Parentage Act, a man is presumed to be the father in any of the following circumstances:

Circumstance 1: He is married to the mother at the time the child is born, or was married to her within 300 days of the birth of the child. This means that, if the man dies or the couple divorces while the mother is pregnant, he is still presumed to be the father.

Circumstance 2: He and the mother, before the birth of the child, attempted to get married (obtained a license and had a ceremony) but the marriage wasn't valid because one person was still married to someone else, the clergyperson could not perform a marriage, or a similar reason, and the child was born during the attempted marriage or within 300 days after the termination of the marriage, be it by court order, death, or simple separation.

Circumstance 3: After the child's birth, the father and the mother have married (or gone through a ceremony in apparent compliance with law) although the marriage could later be annulled for some reason, and the man

a) has acknowledged paternity in writing—for example, by signing a paternity statement

b) with his consent, is named the father on the child's birth certificate, or

c) pays child support under a written, voluntary promise or has been ordered to pay support by a court.

Circumstance 4: While the child is still a minor, the man (who is not married to the mother) receives the child into his home and openly holds out the child as his natural child.

These rules create presumptions. Legally, a presumption means that certain facts are presumed to produce a certain legal conclusion unless rebutted by strong evidence. For example, in Circumstance 4, if a man takes a child into his home and says he's the father—even though he never married the mother—he's presumed to be the father. This doesn't mean that he is—he or the mother might prove that though he received the child into his home and told everyone that he was the father, he wasn't. This can lead to a court fight involving blood tests to prove paternity.

Standards of Proof of Paternity in States That Have Not Adopted the Uniform Parentage Act

There are still quite a few states that haven't yet adopted the Uniform Parentage Act, and many of these still use the terms legitimate and illegitimate. But except for the use of the term illegitimate, the laws of these states relating to the rights of unmarried parents are usually similar to the provisions of the Uniform Parentage Act. This is because in a long line of court decisions, beginning with Levy v. Louisiana, 391 U.S. 68 (1968), the U.S. Supreme Court has struck down most state laws giving legitimate children more legal rights than illegitimate children.

In most states that still label children illegitimate, it's possible to change the label from illegitimate to legitimate if any of the following things apply:

• The parents marry each other. (Children born during a marriage that is later annulled remain legitimate.)

• The father signs a paternity statement or voluntary declaration of paternity acknowledging in writing, under penalty of perjury, that the child is his. If the state has a registry for children born of unmarried parents, it is also a good idea to file the paternity statement with your state's Bureau of Vital Statistics.

• The father welcomes the child into his home or holds himself out as the father.

• The parents go to court and have a judge rule that the man is the father. This can usually be done by joint petition—where the parents go to court together in a nonadversary proceeding.

Competing Presumptions of Fatherhood

Some situations may present competing presumptions of fatherhood. For example, suppose a woman cohabiting with an unmarried partner is still married to another man. If a child is born during that time (while the marriage still exists), the husband is legally presumed to be the child's father. But if the unmarried partner acknowledges paternity by signing an acknowledgment of paternity and holding the child out as his child, he generally will also be presumed to be the child's father. When there are competing presumptions and both men want to be considered the child's father, it will be difficult to avoid a court proceeding to determine who the child's father is.

Biology is not necessarily destiny. In one California case, a man who was not the child's biological father still won a court battle of competing presumptions. (Steven W. v. Matthew S., 33 Cal. App.4th 1108 (1995).) A similar result was reached in a Colorado case in which the court held that the best interests of the child must be considered in weighing competing presumptions of paternity. (N.A.H. v. S.L.S., 9 P.3d 354 (2000).) In a case in Indiana, a woman was not allowed to challenge her ex-husband's paternity rights, even though genetic testing showed he was not the child's biological father, because she had been cohabiting with him when the child was conceived (before they got married) and she had consistently identified him as the father, including in court documents relating to their divorce. (Ohning v. Driskill, 739 N.E. 161 (2000).) On the other hand, a Maine court upheld an order declaring a man was not the father of a child born to his ex-wife during the marriage, because both parties knew the husband was not the biological father. (Stitham v. Henderson, 768 A.2d 598 (2001).)

Impact of Abandonment of a Child on Parental Rights

The right to be considered a full legal parent can be lost if a parent fails to exercise parental responsibilities. The law calls this "abandonment." In most states, abandonment is defined as a period of time (often two years) in which a parent who does not have physical custody fails to contact and—if the parent has the ability—to support a child. Some states have shortened this time period to one year. If you have no money and don't have the ability to support your child, you won't be considered to have abandoned your child as long as you visit regularly. The key is that if you are not the parent with custody, you must stay involved with your child to the best of your ability.

A parent who has not assumed any parental obligations for several years faces an uphill battle if there's a later abandonment action or custody fight. However, that parent is still entitled to be notified and have a hearing on a custody challenge. (Stanley v. Illinois, 405 U.S. 645 (1972).) It is important to note that if a parent has relinquished the opportunity to develop a relationship with the child, and has only a biological link to the child, courts may not take the claim for custody very seriously. Obviously, if a parent without custody has made repeated attempts to contact a child and has been prevented from doing so by the other parent, a court would be willing to give the case more consideration. If you have not been regularly visiting and supporting your child, you should go to court to assert your rights as soon as possible. A parent who is out of contact with a child is extremely vulnerable to having parental rights terminated in an abandonment proceeding.

Getting Legal Help on Paternity and Related Issues

An experienced family law attorney can help you resolve issues regarding your legal rights and those of your children. See Nolo's Lawyer Directory for a list of local family law attorneys.

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