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Children Born Outside Marriage[/SIZE]
Script 140 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses issues relating to children born parents who arent married, including parents in common-law relationships. These issues include birth registration, custody and access, inheritance rights, and so on.
What is the legal status of a child born outside of marriage?
A child is the child of his or her biological parents. There is no difference in law in the status of a child born to someone who is legally married, to a single mother, to a person in a common-law relationship, or to a couple in a same-sex relationship or an opposite-sex relationship. A child born outside marriage is treated in the same way as a child born inside marriage.
How is the birth registered when a child is born outside of marriage?
BCs
Vital Statistics Act requires that a child born in BC must be registered with the government by filing a Registration of Live Birth within 30 days after the birth. The Act requires both parents to sign this form, unless one or both is incapable. If the father is unknown or doesnt acknowledge that he is the father, the childs mother can sign the birth registration alone.
How is the childs last name chosen?
The parents may choose any last name they like, if they agree. Otherwise, the childs last name will be a hyphenated combination of both surnames in alphabetical order. If only the mother signs the birth registration, she can choose the last name.
Can the childs birth certificate be changed later to show the father?
If both parents agree, they can amend the birth registration to list the father and, if they want, to change the childs name. If they dont agree, the father may apply to court to establish the childs parentage and ask for a change in the childs last name.
Before making name changes, however, the court must consider the change to be in the best interests of the child. The court must also consider the wishes of any child over age seven, and children over 12 must consent to the change in last name. If these conditions are satisfied, the court may order the last name to be the last name of either parent or a hyphenated combination of their last names.
The Vital Statistics Agency handles birth registrations
For more information, call the Vital Statistics Agency at 604.660.2937 in the lower mainland, 250.952.2681 in Greater Victoria, and toll free 1.800.663.8328 if you live elsewhere in BC. Also check the Agencys website at
www.vs.gov.bc.ca.
Does the father have to consent to the adoption of his child?
Say an unwed mother wants her child to be adopted by another family. In this case, BCs
Adoption Act says that the consent of the biological father is usually required. The father must be notified about the proposed adoption, unless the court rules that its not in the childs best interests or the circumstances justify not giving the father notification. There is also a Birth Father Registry that acts to protect fathers rights. When a birth father places his name on the registry, it allows him to receive written notice of a proposed placement and potentially object to the adoption.
For more information on adoption, refer to refer to script
145 on Adoption and script
146 on Adoption Registries.
Does an unwed mother automatically get custody of her child?
No. Unless theres an agreement or court order, the
Family Relations Act governs the legal authority over children of unmarried parents. But to understand what the Act says, you need to understand what guardianship means.
Guardianship is about parenting
Guardianship of a child is the right to make parenting decisions for the child (for example about schooling, religious instruction or health care) and the right to get information from the important people in the childs life (for example teachers, doctors and counsellors). This is called having guardianship of the person of a child. Guardianship of the estate of a child is the right to make decisions about the control and use of property belonging to a child.
The type of guardianship unmarried parents have without a court order or a written agreement about guardianship depends on their relationship with each other:
- If the parents still live together, they both have guardianship over the childs person and estate.
- If the parents used to live together but are now separated, they both have guardianship over the childs estate, but only the parent who lives with the child has guardianship over the childs person.
- If the parents never lived together, the parent who lives with the child has sole guardianship of the childs person and estate.
Although it is parents who are presumed to have guardianship of their children, any person may apply for guardianship of a child, including step-parents and grandparents.
Custody
Custody means much the same thing a guardianship and includes the right to have the child with you. One parent can have custody (called sole custody) or both parents can have custody (called joint custody). However, having sole custody does not mean that the other parent cant see the child, and having joint custody doesnt necessarily mean that the childs time is equally divided between the parents.
The type of custody unmarried parents have without a court order or a written agreement about custody depends on their relationship with each other:
- If the parents live together, they both have custody of the child.
- If the parents dont live together, the parent with whom the child usually lives has sole custody.
Although it is parents who are presumed to have custody of their children, any person may apply for custody of a child, including step-parents and grandparents.
How does the court decide custody and guardianship?
The court considers the childs best interests. Custody and guardianship of a child of unmarried parents is decided in the same way as when married parents separate. The court can order joint custody or sole custody to either parent. Where the child spends equal time with both parents, the parents would likely have joint custody. But joint custody may also be given where the child lives primarily with one parent, if the mother and father can show that they are both good parents and have a certain minimum ability to parent together. For more information on child custody, refer to script
142 on Custody, Guardianship and Access.
Can you get child support for a child born outside marriage?
Child support is a right of the child not the parent, and each parent is legally responsible for the financial support of their children, whether the parents are married to each other or not.
For more information on child support, refer to script
117 on "Child support and script
147 on Common-Law Relationships: About the Children in your Family.
What are the inheritance rights of children born outside of marriage?
The rights depend on whether or not the parent made a will and on the childs relationship to that parent:
- If a person makes a will leaving all or part of their estate to my children, this means all their biological or adopted children. Any child born outside of marriage would be treated the same as a child born within marriage. However, step-children or children who have been adopted by someone else would not be included.
- If a parent makes a will and treats any biological children (whether born inside or outside marriage) and adopted children differently from each other, an application can be made under the Wills Variation Act to change the affected childs share of the estate.
- If a parent dies without leaving a will, then the Estate Administration Act dictates how the estate will be split among a surviving spouse and any children. A child born to unmarried parents will receive exactly the same share as a child born to married parents.
For more information on inheritance rights, refer to script
179 on "The Disappointed Beneficiary and script
177 on What Happens When You Die Without a Will. As wills can be complicated, you should get advice from a lawyer.
