Legal Rights of the Illegitimate Child

Authorby Major Robert W. Martin
Pages09
  1. INTRODUCTION

    Thie article will provide a broad werview of the legal rightsofthe illegitimate child. It will begin by studying some of the posaible causes of the recent increase in litigation dealing with the issues of illegitimacy, followed by a brief legal history of the illegitimate child. It will then examine and analyze some oi the more important United States Supreme Court cases dealing with various facets of illegitimacy in order to provide a more comprehensive understanding of this area oi the law. Finally. the illegitimate child's rights to support and inheritance wll be discussed as well as such child's rights to military benefits.

    11. REASONS FOR INCREASE JN ILLEGITIMACY LITIGATION

    1H Krause Illegltsmacy Law and Social Policy 276-78l19ill.

    SH Clark. Lau, of Domeific Relationr 156 (19683 [hereinafter cited 88 Clark] Sld at 167lid at 168

    bTILITARY LAW REVIEW [VOL. 102

    In addition to the rise in illegitimacy, the Supreme Court in recent years has demonstrated a willingness to expand the scope of the Equal Protection Clause ta encompass a more comprehensive scrut-in) of Statutory clasrifications.6 Illegitimate children, a class traditionally subject to unfavorable statutory schemes, undaubtedl: saw an opportunity to benefit by increased equal protection emphasis. Accordingly, as initial judicial Yictories occured. more wits were filed.

    I11 HISTORICAL BACKGROUND

    wedlock as the "son of nobody, Thus. the child could not be the heir to anyone. nor r than those af hisown body. Parents owed it no obligation of support.E The child had no inheritance rights from either parent: only theissueofits bodycould inherit from it. There were no statutes providing for legitimation. either by establishing paternity. by acknowledgement of paternity. or by subsequent marriage of Its parents. Adoption was unknmn:

    The rationale behind these harsh doctrines of the common IBIV has

    not been clearly articulated. Rather, it is dependent upon a thorough sociological study a i the history of the family unit and the mores of the members of the various races.8 It mar be said, however. that the concept of izuflias filius arose. not out of the difficulty of actual proof a i the real father and the concurrent fear of fraudulent claims against estates, but rather because the child was the product of immoral relations. Thus. the belief of the English in the practice of

    child

    Another reason, however, seems to have motivated the pmclu~ion of legitimation by intermarriage of the parents, the difficulty of proof of the identity of real father and the concurrent fear of fradu-lent claims against the estates of wealthy landowners.? Indeed, an

    ~J Xousk R Rotunda & J Young Cmltltufional La 517 (19781.

    19831 RIGHTS OF THE ILLEGITI?AIATE CHILD

    example of this reasoning is to be found in the Napoleonic Code.10 which allowed the illegitimate child rights againat his actual father but only when his father acknowledged him:1? testimonyof paternity by the child. his mother, or any third party was insufficient. Similarly, Spanish law provided that a child could become legitimated by the subsequent marriage of his parents, followed by an acknowledgment of paternity by the father. This legitimation. however, only applied to those children whose parents were capable of marrying at the time of the children's birth Thus, B child of an adulterous rela-tionship could notbecameiegitimatedby thesubsequent marriageof its parents. Rather. the child remained an "adulterine bastad"12 Under Roman Civil Law, an illegitimate child born of a concubine could become legitimate by the subsequent marriage of the parents, whereas a child of a prostitute could never be made legitimate. Again. the mores of the particular society played an important role, the concubine historically had a legal relation to the family which was sanctioned by the church until the Council of Trent 13

    America accepted the common law concept of nullius jilius. Over the years. a sense of justice appears to have found its way into this area of the law to shatter the harshness of the common law concept and pave the way for statutory modification. Abrogation has by no means been complere. In most American jurisdictions, fragments of the common la% tenets still remain. Consequently. the American law on the subject is characterizedbygrantsofrarious quantaof inherit. ance rights to and from the illegitimate. These rights are uniform in some jurisdictions. while in others the differences are not...

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