Also known as: nonmarital children · non-marital child · nonmarital child · non marital children · illegitimate children · children born out of wedlock
Written by attorneys — see sources below.
Children born to parents who are not married to each other at the time of the child's birth. Their legal status receives constitutional protection against punitive classifications in inheritance and support, and due process safeguards attach when an unmarried father has formed a family unit with the child.
Nancy Nelson and her partner raised their daughter together in a shared home for five years. After Nancy died in an accident, state officials removed the child from the father's care without any hearing on his fitness. The father's established family relationship with his non-marital child entitled him to notice and an opportunity to be heard before the state could sever the parental tie.
Nicole Navarro created a trust leaving her estate to her 'children.' Her genetic daughter born outside marriage had lived with Nicole for years and received daily care from her. The daughter qualified as a member of the class because the gift was created by the genetic parent and no contrary intent appeared in the instrument.
Natasha Nielsen filed a support action on behalf of her non-marital son six years after birth. State law barred such claims after six years while allowing marital children to seek support indefinitely. The limitation failed intermediate scrutiny because the state offered no evidence that the cutoff actually prevented stale or fraudulent claims.
Norman Nash died intestate. His non-marital daughter sought a share of the estate but had never obtained a court adjudication of paternity during his life. The state statute conditioning inheritance on lifetime establishment of paternity was upheld because it substantially advanced the interest in orderly estate administration and fraud prevention.
Nalini Narula's non-marital son claimed an intestate share from his father's estate. State law categorically excluded all non-marital children from inheriting from fathers. The total bar violated equal protection because it penalized the child for the parents' marital status without a substantial relation to any important state interest.
A man claiming to be the biological father of a child born to a married woman sought to block the child's adoption by the mother's husband. He had never established a personal or legal relationship with the child. Because he had not grasped the opportunity to form a parental bond, he possessed no due process right to notice or consent.
In May 1976 Carole D. and Gerald D. married in Las Vegas and established a home in Playa del Rey, California. In the summer of 1978 Carole began an adulterous affair with neighbor Michael H. In September 1980 she conceived Victoria D., who was born on May 11, 1981. Gerald was listed as father on the birth certificate and has always held her out as his daughter. Soon after delivery Carole told Michael she believed he might be the father. Blood tests performed in October 1981 showed a 98.07 percent probability that Michael was Victoria's father. During the first three years of her life, Victoria remained always with Carole, but found herself within a variety of quasi-family units. In November 1982 Michael filed a filiation action in California Superior Court seeking to establish paternity and visitation rights. In March 1983 the court appointed a guardian ad litem for Victoria, who filed a cross-complaint asserting a right to maintain filial relationships with both men. In April 1984 Carole and Michael signed a stipulation acknowledging Michael as Victoria's natural father, but Carole later directed her attorneys not to file it. In June 1984 Carole reconciled with Gerald; they now reside together with Victoria and two later-born children in New York. In May 1984 Michael and Victoria sought visitation pendente lite. A court-appointed psychologist recommended sole custody with Carole and limited visitation for Michael; the Superior Court ordered such visitation. On October 19, 1984 Gerald moved for summary judgment under California Evidence Code § 621. On January 28, 1985 the Superior Court granted the motion, finding no triable issues of fact as to paternity, and denied continued visitation. The California Court of Appeal affirmed the judgment of the Superior Court and upheld the constitutionality of the statute in 1987. The California Supreme Court denied discretionary review. On February 29, 1988, the United States Supreme Court noted probable jurisdiction of the present appeal.
View caseClassifications based on a child's non-marital status receive intermediate scrutiny. The state must demonstrate that the classification is substantially related to an important governmental objective.
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Yes. A requirement that paternity be established during the father's lifetime is substantially related to the important interest in orderly and fraud-free administration of estates.
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Yes. Due process requires notice and an opportunity to be heard before the state may sever the relationship when the father has participated in raising the child.
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The non-marital child is presumptively included in the class unless the instrument or circumstances show a contrary intent by the transferor.
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Yes. A total exclusion that punishes children for their parents' marital choices is not substantially related to any important governmental interest.
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…of Justice Powell At issue in this case is the constitutionality of § 12 of the Illinois Probate Act which allows illegitimate children to inherit by intestate succession only from their mothers. Under Illinois law, legitimate children are allowed to inherit by intestate succession from both their mothers and their…