As a father, ‘legitimation’ might be the most important word you’ve never heard of.
Consider an example. You’ve discovered that an on-again, off-again romantic interest is pregnant with your child. While neither of you has any interest in getting married, you’re both very excited about being parents, and you start getting together everything you need. You buy a crib. You talk to pediatricians. You discuss names. When the child is born, you sign the birth certificate.
You’ve never heard of the word ‘legitimation,’ but no matter. Everything appears to be going smoothly.
What, then, could possibly go wrong?
Well, suppose you and the mother get in a serious fight, and she decides to move away. You think she can’t move – after all, you both have joint custody, correct? If she moves, wouldn’t that deprive you of custody?
Imagine your surprise if you discover in court that you do not, in fact, have custody.
Yes, you’ve been an attentive father. Yes, you’ve contributed financially to the child’s raising. Yes, you’ve even signed the birth certificate. What’s the problem?
Simply put: you didn’t go through legitimation. That, and only that, is the way to legally establish that you’re the father.
“I haven’t heard of legitimation. Should I panic?”
No. The example above is a worst-case scenario, but it does illustrate one of the ways things can go wrong.
The simplest way to put it is this: if you’ve never been married, and don’t plan on getting married, to the mother of your child, you need to make your relationship to your child ‘legitimate.’ You need to go through the process of legitimation. It is the only way to solidify your parental rights in court.
No matter how well or how poorly you get along with the child’s mother, you need to do this. Legitimation protects your relationship with your child.
Let’s make sure we understand it.
What’s Special About Legitimation?
It’s absolutely crucial to know one thing about legitimation before you start the process – it’s just one step in the process of securing your relationship with your child.
It’s not a cure-all, and you shouldn’t think that if you go through the process, your work in the courts is done.
What do we mean? Well, consider what legitimation is, and is not.
1. Legitimation Isn’t Custody
‘Custody,’ in your case, is the legal right to be a part of your child’s life. You get visits, and certain holidays to yourself. You get the right to protect that relationship if it’s endangered in any way.
Legitimation, however, isn’t custody, and you don’t automatically get custody by going through the process of legitimation. That process only gives you the legal right to establish custody.
In short, if you don’t have legal custody of your child, or legal visitation rights, you can’t get them unless you go through legitimation first. It’s the horse, and custody is the cart.
2. Legitimation Isn’t Freedom from Child Support
This might seem contradictory, but it’s the law. You aren’t free of all financial responsibility for your child just because you haven’t gone through the process of legitimation.
Legitimation only gives you the legal right to apply for custody. It establishes you as the father in a court of law. It doesn’t eliminate your responsibilities to the mother, even if you want nothing to do with the child.
3. Legitimation Isn’t Automatic
We’re going to skip to the end for a moment – the only way you can automatically have legitimation is by marrying the mother of your child, or by going to court.
Fathers assume they automatically have legitimation because they’ve been doing certain things since the child was born. (In our example above, the father assumed he had legitimation because he signed his child’s birth certificate.) It doesn’t work that way.
We’re going to start hammering this point home, because it’s crucial – the best way to establish legitimation is to go to court and ask for it.
To make sure we’re clear about this, you should understand what doesn’t confer legitimation.
What Doesn’t Provide Legitimation?
Repetition is the key to learning, so here it is again – the best way to get legitimation is to go to court.
The idea that you need to have a court declare that you’re the father of your child might seem odd or petty but there are good reasons for it. All of those reasons have to do with protecting the child.
If you’re going to protect your relationship with your child, however, you need the court.
To drive that point home, consider what doesn’t provide legitimation.
1. Passing a Paternity Test Doesn’t Grant Legitimation
If you’re like most men, this one surprised you. It’s true, however – passing a paternity test does not, in the eyes of the law, make you the legitimate father of your child.
It doesn’t mean the law thinks that you’re somehow not the biological father, mind you. It just means that the law makes a distinction between being the genetic donor and being an involved parent. If you want to be an involved parent, and you’re not married to the mother, you need to let the court know.
Mind you, you’ll probably have to take a paternity test at some point, but it’s not enough by itself to complete the process.
2. Paying Child Support Doesn’t Grant Legitimation.
This one is tricky.
If a court grants you legitimacy, you have the right to pay child support. If you do not have legitimacy, you probably still have to pay child support.
And, of course, if you’re paying child support, that doesn’t mean you’re the involved parent the courts will recognize.
Child support is given to help the mother. As the biological father, that’s your responsibility under the law. And since it’s your legal responsibility, it’s required of you whether or not you choose to have a relationship with your child.
If you want that relationship, good – but you’ll still need to tell the courts, and they’ll still need to grant legitimation.
3. Signing the Child’s Birth Certificate Doesn’t Grant Legitimation.
We keep hammering this point home, but it’s true – mostly. If you’re not married, and you sign the child’s birth certificate, you don’t automatically have legitimation.
We say ‘mostly’ because there are certain exceptions in certain states. It’s best not to say where, however, because that might encourage you to skip the one step you need to take, and the one we keep emphasizing: make sure you are granted legitimation in court.
Besides, these sorts of laws change all the time (some areas started granting legitimation with only a signed birth certificate after 2008, but that’s not true everywhere). If you want to be safe, go to court.
4. Putting the Child in Your Will
It’s actually quite the opposite in this case – if you aren’t granted legitimation by a court, your child isn’t automatically given inheritance rights.
In short, if you want to make sure your child gets something from your estate after you pass, you need a court to grant legitimation. It’s the best way to protect your child’s rights.
What Does Confer Legitimation?
We kept hammering this point home, and it’s time for one more round.
1. Marrying the Mom
We didn’t talk about this much, but marriage, either before or after the child’s birth, will automatically grant you legitimacy. Divorce will not remove it.
Keep in mind that being engaged isn’t enough. If you are, or were, married to the mother of your child at any point when the child was in the womb or afterwards, you are granted legitimacy.
Of course, this also means you and the mother are getting along, and planning a life together. The court process of granting legitimation isn’t made for these cases. It’s made to protect the parent-child relationship when the mother and father aren’t always getting along.
This means, of course, that you need to do the one thing we keep repeating: court.
2. Going to Court
We can’t emphasize this enough, even though we’re trying our best.
Fact is, there’s not a safe way around this: if you want legitimation granted, you need court.
You’ll probably hear of quicker ways, and think those ways are enough. Perhaps you and the mother have signed an Acknowledgement of Paternity, and you’ve heard that that’s enough, in the eyes of the law, to make you the legitimate father of your child. But is the paperwork filed correctly? Have you been granted any sort of custody after signing?
The law changes in really important ways from state to state. The one thing that doesn’t change, however, is a judge’s permission. Getting a judge to grant you legitimacy is the best way to make sure you aren’t unpleasantly surprised down the line by something you overlooked.
Besides, if you recall, getting legitimation granted is the first step towards getting custody.
If you’re already in court for legitimation, you can usually be granted basic custody or visitation rights immediately afterwards. If you signed an Acknowledgement of Paternity, you’ll still have to go to court for custody.
In short: go to court.
Is Legitimation Really Something I Need to Worry About?
It’s common to think something like this: ‘the mother and I are getting along great. Going to court would just sour that relationship. Is this really something I need to do?’
Yes, it is.
A good relationship with the mother isn’t guaranteed, but a good relationship with your child can be, provided you protect it with a court of law. And the first step in that process is being granted legitimation.
Signing a birth certificate, paying child support, or otherwise being an attentive father isn’t enough in the eyes of the law. You need to make it official.
Play it safe, and go to court. It’s best for the child, and best for you.