What should I know about legitimation?

Contents

• What is legitimation?
• What are things that do NOT legitimate a child?
• What are my rights and responsibilities in legitimation?
• What are the mother’s rights and responsibilities in legitimation?

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What is legitimation?

Legitimation is the process that fathers use (other than marriage to the mother) to establish parental rights to their children who were born out of wedlock. Without legitimation, these fathers have no right to custody or visitation with the children (although the laws say they have the obligation to support them financially). 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.

 

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 

1. were not married when the child was conceived, 
2. were not married when the child was born, and 
3. 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.

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What are things that do NOT legitimate a child?

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, 
• being named the father in a paternity test, 
• agreeing to or being ordered to pay child support, 
• naming the child in the father's last will and testament, 
• signing the child's birth certificate.

 

If you wish to have any legal rights to your child, including custody and visitation, or the right to object to an adoption, you must legitimate the child. 

 

This is true even if you have:

• Been a constant presence in the child’s life,
• Lived with the child’s mother,
• Supported the child financially,
• Taken a paternity test that shows you are the biological father.

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What are my rights and responsibilities in legitimation?

You have the right to file a petition for legitimation. Before legitimation you have no legal rights to a child. If your petition for legitimation is granted, you have the right to ask the court for custody and visitation and your child has the right to your inheritance.

 

Whether or not the legitimation petition is granted, you may still be responsible for financial support of the child. If you wish to have legal rights to your child born out of wedlock, including custody and visitation, or the right to object to an adoption, you are responsible for establishing legitimation.

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What are the mother’s rights and responsibilities in legitimation?

A mother has a right to be formally notified of a petition for legitimation. She has the right to object to legitimation and to attend the court hearing.

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Contents

• How do I legitimate a child?
• Where should I file a Petition for Legitimation?
• Other than legitimate the child, what else can the judge do?

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How do I legitimate a child?

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.

 

In the past, you could legitimate by if both parents signed a voluntary Acknowledgement of Paternity form, but that is no longer allowed.

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Where should I file a Petition for Legitimation?

The Petition for Legitimation is usually filed in the Superior Court in the county where the mother lives. Sometimes, if the mother cannot be found or lives out of state, the petition can be filed in the county where the father lives. If there is an adoption pending, the legitimation should be filed where the adoption is pending. The petition can be filed in Juvenile court if there is already an active juvenile court case regarding the child. To have the legitimation decided at the same time as a paternity case, the father can file a "third-party" Petition for Legitimation.

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

In most legitimation cases, the judge will also order child support. If the father requests to change the child's name or to have his name added to the child's birth certificate, the judge can order this. If the father asks for custody or visitation, the judge can also decide these issues.

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