Legalese — Why Legitimate?

jubilee year
Me, in the last jubilee year.

Whatever our political divide, we can all agree on one thing: babies are cute.  Babies make people smile, and are a physical reminder that whatever happens, life goes on.  Babies are life going on. 

Unfortunately, babies are subject to the law as well.  While biologically[1], you need a mother and a father to create a baby[2], legally you don’t.  Babies can have just one parent, or two parents of the same sex.  The only automatic parent, legally, is the mother.  When a baby is delivered from the womb, the possessor of the womb who delivered the baby is automatically, legally the mother, with all the rights and responsibilities that go along with that. 

Any other parent is another story. 

If the parents are legally married, the person married to the mother is the legal parent.  If the parents are not legally married, the baby only has one parent.

Let’s tell a story to make this more understandable.

Hannah and Ben are 23 years old and have been together for a couple of years.   Hannah finds herself pregnant, and she and Ben decide they are not yet ready for marriage, so they don’t get married.  Hannah gives birth to a bouncing baby boy they name Liam, giving him Ben’s last name, Jones.  They name Ben on the birth certificate as the father, and Ben signs the paternity acknowledgement form at the hospital. 

Everyone rocks on along just fine until Ben is unfortunately killed in a car accident.  He was hit by a tractor-trailer from a big box store whose driver was under the influence.

Question: Can Hannah sue the big box store and the driver on behalf of Liam for the wrongful death of Ben?   Can Liam benefit from any insurance settlement?

Another Question: Can Hannah get Liam the death benefits he is entitled to through Social Security?

Yet Another Question: Because Ben was so young, he didn’t have a will.  Is Liam entitled to inherit from his estate?  

The answer to all of these questions is an emphatic no.  Although biologically and emotionally and to the outside world there is no doubt that Ben is Liam’s father, legally, Ben is not Liam’s father.  The only right Ben would have had to Liam, had he lived, would be the right to pay child support.  Forget about Ben and his rights – all of Liam’s have been taken away because his parents didn’t lock things up legally.  The 3 million dollar wrongful death settlement goes to Ben’s parents, not his son.  No one gets Ben’s social security benefits.  All of Ben’s estate goes to his parents and/or siblings.  This includes his Mustang and his 1991 Chipper Jones Baseball Card, worth about $4,000.00, that he regularly showed Liam, telling him it would send him to college one day.

And don’t get me started on what happens if Ben and Hannah break up.

So what should Ben and Hannah have done?  Ben should have gone to court and legitimated Liam.  Lots of people don’t do it when things are going well, because it doesn’t affect much in the day to day of things if everyone stays alive and gets along.  But when things are going well and everyone agrees on the outcome[3]  legitimation is a very simple thing to do in Georgia and may not even require your presence in a courthouse.  It can all be done with paperwork and the mail.

I’m not making a moral judgment here, just a practical one.  You can marry or not marry, that’s your business, and whoever the other parent is – well, the more people that love a child the better, I say.  But I am in the business of protecting children from the actions of their parents, and a failure to marry could have a tremendous impact on the child’s life and rights in the future.     

[1] Until we master and sort out the ethical quandraries regarding cloning, that is.

[2] A sperm and an egg need to meet somewhere.

[3] For example, here, everyone agrees that Ben is the father, that Ben and Hannah are living together and sharing parenting time and living expenses for Liam, so no child support or parenting plan is necessary.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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