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Rice Law Blog

Unequal rights for children born out of wedlock

Record numbers of children are being born out of wedlock but few parents stop to understand the legal implications. About forty percent (40%) of all children in the United States are born out of wedlock and 44.5% of children in North Carolina are born out of wedlock. Sociologists suggest the increased numbers of children being born out of wedlock is caused by an American attitude that marriage is less important than it once was.

Data from the National Center for Health Statistics shows that 72% of Black children are born out-of-wedlock, compared to 65% American Indian, 51% Latino, 28% White, and 17% Asian. In addition to children born of cohabitating couples, more children are also being born to older more financially affluent individuals who choose to have babies with the help of sperm banks.

While it may be socially acceptable to have children born out of wedlock, those children in North Carolina do not have the same rights as children born of married couples. Children born out of wedlock that are not legitimated through a court special proceeding or subsequent marriage are illegitimate. Some differences in rights include:

  • Illegitimate children may not inherit property from their father (except through a Last Will & Testament);
  • Illegitimate children are not eligible for survivor’s Social Security Benefits as a result of the death of the child’s father;
  • Illegitimate children may not sue for wrongful death of their deceased father;
  • The father of an illegitimate child may have his parental rights terminated for the father’s failure to legitimate the child as provided for under N.C. Gen. Stat. § 7B-1111(a)(5);
  • The father of an illegitimate child does not have the same notice rights in an adoption proceeding involving the illegitimate child;
  • The birth certificate of a child who is legitimated will be changed to show the father’s name; and
  • Procedures for the establishment of child support are abbreviated.

A child who is legitimated through marriage or a special proceeding under Chapter 49 of the North Carolina General Statutes is afforded all the rights and privileges of a legitimate child. With all of these rights on the line and the significant increase in illegitimate children, you would think that our Legislature would pass new laws to equalize the status of legitimate and illegitimate children. Perhaps that will come. But until then, fathers who are not married to mothers need to file actions to legitimate their children.
For more information, see Kids Born to Unwed Moms Hit Record High and  Unwed birth rate reaches all-time high in U.S.

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