Children Born Outside Marriage (Script 140)

From Clicklaw Wikibooks

This script discusses issues relating to children born to parents who aren’t married, including parents in common-law relationships. These issues include birth registration, guardianship, parenting arrangements and contact, inheritance rights, and so on.

What is the legal status of a child born outside of marriage?

There is no legal difference in the status of a child born to someone who is married, to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship or to a couple in an opposite-sex relationship. A child born outside marriage is treated in exactly the same way as a child born to married parents.

How is the birth registered when a child is born outside of marriage?

BC’s Vital Statistics Act requires that a child born in BC to be registered with the government by filing a Registration of Live Birth within 30 days after the birth. The Vital Statistics Act usually requires both parents to sign this form, unless one or both parents are incapable. If the father is unknown or doesn’t acknowledge that he is the father, the child’s mother can sign the birth registration alone.

How is the child’s last name chosen?

The parents may choose any last name they like, if they agree. Otherwise, the child’s last name will be a hyphenated combination of both surnames in alphabetical order. If only the birth mother signs the birth registration, she can choose the last name.

Can the child’s birth certificate be changed later to show the other parent?

If the parents agree, they can change the birth registration to list them both as parents and, if they want, to change the child’s name. If they don’t agree, the other parent may apply to court to establish the child’s parentage and ask for a change to the child’s birth certificate, including a change to the child’s 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 7 and have the written consent of children over age 12 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 elsewhere in BC.

Does a parent have to consent to the adoption of their child?

Say a single mother wants her child to be adopted by another family. In this case, BC’s 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 it’s not in the child’s best interests or the circumstances justify not giving the father notification. There is also a Birth Father Registry that will ensure that registered fathers are notified of a proposed adoption.

For more information on adoption, check script 145 on “Adoption” and script 146 on “Adoption Registries”.

Are parents automatically guardians of their child?

Sometimes. The Family Law Act says that parents who are living together when their child is born are the child’s guardians until they separate. And in this situation, parents are generally guardians after they separate, as well. But parents who never lived together after their child was born are not guardians unless:

  • they are a parent because an assisted reproduction agreement says they are a parent;
  • the parent and all of the child's guardians make an agreement that the parent is also a guardian;
  • the parent regularly cares for the child.

If a parent isn’t a guardian, the parent can apply to the court to be appointed as the guardian of their child. The law in this area is complicated; so you should speak with a lawyer before making a court application.

What does guardianship mean?

People who are the guardians of a child may be entitled to parental responsibilities, but it is not guaranteed: the responsibility to decide how to raise the child, based on the child’s best interests. Parental responsibilities include deciding where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child. A parent who is not a guardian cannot have parental responsibilities.

Parental responsibilities can be shared between two or more guardians, meaning that all the guardians are responsible for making decisions about the child and must consult each other before making decisions. Parental responsibilities can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, and can make those decisions without having to consult the other guardians. The allocation of parental responsibilities can be done through a separation agreement or parenting plan agreement signed by all the guardians or by a court order, if an agreement cannot be reached.

The time a guardian spends with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day-to-day matters involving the child.

What if a parent isn’t a guardian?

A parent or a person (such as grandparents, aunts, uncles) who is not a guardian of a child, does not have any parental responsibilities for the child and is not entitled to be consulted when decisions are being made about the child.

The time someone who is not a guardian has with a child is called contact.

How do you apply to be appointed as a guardian?

Only people who aren’t already guardians need to be appointed as a guardian. To be appointed, you must apply to court and must complete a special affidavit required by the court rules. This affidavit requires you to get a criminal records check, a protection order registry check, and a records check from the Ministry for Children and Family Development, and to provide certain information about the children that are and have been in your care. If the child you are seeking to be guardian of is at least 12 years old, you need their consent to become their guardian.

Can you get child support for children born outside marriage?

Child support is a right of the child 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, check script 117 on "Child Support”.

What are the inheritance rights of children born outside of marriage?

Inheritance rights depend on whether the parent made a will and whether the parent has a spouse or other children at the time of death:

  • If a person has a spouse and dies without a will, the spouse is entitled to a certain share of the dead person’s estate and the person’s children split what’s left, whether they’re born outside marriage or not.
  • If a person dies without a will and doesn’t have a spouse, the person’s children are entitled to share in the estate, whether they’re born outside marriage or not.
  • If a person dies with a will, children born outside of marriage will receive whatever the dead person has left to them in their will. But the child can apply to vary the will if they believe that they didn’t receive a fair share of the dead person’s estate.

For more information on inheritance rights, check script 179 on "The Disappointed Beneficiary” and script 177 on “What Happens When You Die without a Will”. Wills can be complicated, so you should get advice from a lawyer.

More information

[updated October 2018]

The above was last edited John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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