Children Born Outside Marriage (No. 140)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Renée Aldana, South Coast Law Group in October 2018.

Under the law, a child born outside marriage is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations.

Understand the legal framework

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.

Registering the birth of a child born outside of marriage

Under the law in BC, a child born in British Columbia must be registered with the government within 30 days after the birth. Birth registration can be done online at gov.bc.ca/vitalstatistics, unless additional parents (other than the mother and father) are being recorded. You can request a paper birth registration form by calling the Vital Statistics Agency, the government office that handles birth registrations. Call 250-952-2681 in Victoria, or 1-888-876-1633 elsewhere in BC.

Both parents must sign the birth registration form, unless one or both parents are incapable. If the father is unknown or doesn’t acknowledge he is the father, the child’s mother can sign the birth registration alone.

Choosing the child’s last name

The parents may choose any last name they like for a child, if they agree. If the parents do not agree on a last name for a child, the child’s last name will consist of the parents’ surnames hyphenated or combined in alphabetical order.

If only the birth mother signs the birth registration, she can choose the child’s last name.

Placing a child for adoption

Under the law in BC, a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental responsibilities for the child to another family.

A birth mother’s consent to an adoption is required unless the child is in the permanent care of the child welfare authorities. A birth mother’s consent to the adoption of her child is valid only if the child is at least 10 days old when the consent is given. The consent must be in a specific written form, and other documents are also required.

A biological father’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be located or if to do so is in the child’s best interests.

For more on adoption, see our information on adoption (no. 145) and adoption registries (no. 146).

Parents are generally guardians of their child

Under the law in BC, while a child’s parents are living together, each parent is the child’s guardian.

Guardians generally, but not always, have parental responsibilities for a child. This means they can make decisions for and about a child. We explain this shortly.

A parent who never lives with their child is not the child's guardian unless one of the following applies:

  • they are a parent under a written agreement providing for the child’s birth through assisted reproduction,
  • the parent and all of the child's guardians make an agreement that the parent is also a guardian, or
  • 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. We explain this shortly.

Guardians generally have parental responsibilities for a child

Parental responsibilities means having 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.

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. The allocation can also be done 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.

If a parent isn’t a guardian

A parent who is not a guardian of a child does not have parental responsibilities for the child. They are 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.

Common questions

How can I become a child’s guardian?

If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:

  • If you are a parent, you can become a guardian by an agreement with the child's guardians.
  • If you are not a parent or if the other guardians don’t agree with you becoming a guardian, you can apply to court to be made a guardian.
  • You can also become a guardian, whether you're a parent or not, through a guardian's will or an appointment when a guardian dies or becomes incapacitated.

If you apply to court to become a guardian, the law in BC requires you to provide certain information about why the order would be in the best interests of the child. You must complete a special affidavit (a legal document where you make statements about facts you say are true), get a criminal records check, a records check from the child welfare authorities, and provide certain information about any children that are and have been in your care.

Can I get child support for a child born outside marriage?

Child support is a right of the child. Each parent is legally responsible for the financial support of their children, whether the parents are married to each other or not. For more on these responsibilities, see our information on child support (no. 117).

What are the inheritance rights of a child born outside of marriage?

The right of any child to an inheritance depends on whether the parent made a will and whether the parent has a spouse or other children at the time of their death.

Under the law in BC, if a person dies without a will and has a spouse, the spouse is entitled to a certain share of the deceased’s estate. The deceased’s children split what’s left, whether they’re born outside marriage or to married parents.

If a person dies without a will and doesn’t have a spouse, the deceased’s children are entitled to share in the estate, whether they’re born outside marriage or not.

If a person dies with a will, their children receive whatever the deceased left to them in the will. But any child (whether born outside of marriage or to married parents) can apply to court to vary the will if they feel their portion of the estate is not "adequate, just and equitable in the circumstances". BC law requires a person in their will to make adequate provision for the proper maintenance and support of their spouse and children.

For more on inheritance rights, see our information on Challenging a Will (no. 179) and When Someone Dies Without a Will (No. 177).

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

If the parents agree, they can change a child’s birth registration to list them both as parents. The parents can also change the child’s name on the birth registration.

If the parents 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 seven 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.

Get help

With more information

The wikibook JP Boyd on Family Law explains the legal issues affecting children.

Web: wiki.clicklaw.bc.ca



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