Skip to main content

Legal Differences Between Children Born to Married and Unmarried Parents

Last week, a colleague in North Carolina wrote about the different legal treatment in North Carolina between children born to married parents and "illegitimate" children (children not born to married parents -- many of our laws have not been updated since the dawn of the politically correct era, and label such children as "illegitimate" or "bastards," reflecting antiquated prejudices and stigmas against such children). The purpose of this post is to describe the ways treatment of such children in Massachusetts differs in some instances and is similar in others:

  • Illegitimate children may not inherit property from their father (except through a Last Will & Testament, voluntary acknowledgment of paternity, or an adjudication of paternity);
  • Illegitimate children are not eligible for survivor's Social Security Benefits as a result of the death of the child's father (42 U.S.C. § 416(h)(2)(A); M.G.L. c. 190 § 5);
  • Illegitimate children may sue for wrongful death of their deceased father (Levy v. Louisiana, 391 U.S. 68 (1968));
  • In Massachusetts, the father of an illegitimate child may NOT have his parental rights terminated for the father's failure to legitimate the child (M.G.L. c. 119 § 26(4)) M.G.L. c. 210 § 3);
  • The father of an illegitimate child does not have the same notice rights in an adoption proceeding involving the illegitimate child, unless the father has been adjudicated to be the father, but even if he has not been so adjudicated he may still file a parental responsibility claim to obtain the same notice rights (M.G.L. c. 210 § 4A);
  • The birth certificate of a child who is legitimated will be changed to show the father's name (M.G.L. c. 46 § 13);
  • Procedures for the establishment of child support are abbreviated. If a child is born out of wedlock, child support is established in paternity proceedings. If a child is born to married parents, child support is established during divorce proceedings.

Additionally, in Massachusetts there is a difference in the treatment of child support between "illegitimate" children and children born of a marriage. For "illegitimate" children, child support may be sought from the time of the child's birth. For children born of a marriage, child support may only be sought in a divorce dating back to the date of filing or date or service of the complaint for divorce.

Comments

  1. If a child is born out of wedlock and the father of said child signs the birth certificate at birth what if the parents lived in the same household for a period of time wouldn't that living together time be exempt from back support. because it is in effect support (living together)

    ReplyDelete
    Replies
    1. Barbara,

      Yes, the court can consider the payment of or sharing of living expenses to be a form of payment which would reduce and/or eliminate any back support.

      Delete

Post a Comment

Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an