General Information on Legitimation
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.
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, such fathers have no right to custody or visitation of those 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. (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: 1) enrolling the child in school, 2) being named the father in a paternity test, 3) agreeing to or being ordered to pay child support, 4) naming the child in the father's last will and testament, or 5) and, prior to 2008, signing the child's birth certificate.
How do you legitimate a child?
There are 2 basic ways to legitimate a child (other than marriage to the mother):
1) 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) Between 2005 and 2016 both parents could sign a voluntary Acknowledgement of Paternity form and agree in that form to legitimate the child (some call this an Administrative Legitimation). However, the law has changed and that type of legitimation is no longer possible.
Where should you 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.
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.
Did I get custody or visitation rights when I legitimated my child with the statement on the Acknowledgment of Paternity form? (Administrative Legitimation)
No, the mother continues to have the sole right to custody and visitation until a court orders a different custody or visitation arrangement. If you legitimate your child through a statement in an Acknowledgment of Paternity, you must file a separate petition with the court to ask for custody or visitation.