Also known as: out of wedlock · illegitimate · nonmarital
Written by attorneys · grounded in primary & secondary sources — see below
A child born to parents who are not married to each other. The classification triggers constitutional protections against punitive treatment in custody, support, and inheritance matters and supplies a default rule of inclusion in class gifts from a genetic parent.
After the mother dies, Odessa Okada, an unmarried father who has lived with and cared for their daughter, faces an automatic state removal proceeding. The agency places the child with relatives without any hearing on Okada's parental fitness. Okada petitions for custody, arguing that the state must afford him due process before severing the relationship.
Opal Okoro, facing imminent foreclosure, signs a below-market sale contract after the buyer threatens to tell her employer and homeowners association about the default. The buyer later claims the threat was merely disclosure of public information. Okoro seeks rescission, asserting the threat constituted an illegitimate use of power.
Select any source to read its text and confirm it supports the definition.
Olive Okafor's will leaves company units to her children who hold commercial driver's licenses. Her genetic son, born outside marriage and never formally acknowledged, worked alongside her and obtained the required license. The other heirs argue he is excluded. The court applies the default rule treating him as a child of the genetic parent.
Olga O'Neill, a nonmarital child, seeks child support after her sixth birthday. State law bars suits on behalf of nonmarital children after six years while allowing marital children to seek support at any time. O'Neill challenges the deadline as lacking a substantial relation to preventing stale claims.
Oscar Ortiz seeks to inherit from his genetic father who died intestate. State law requires a paternity adjudication during the father's lifetime. Ortiz offers payroll records and birthday cards addressed to my son but no court filing or written acknowledgment occurred before death.
Odilia Okamura, a nonmarital child, is barred by state intestacy law from any share of her father's estate. The statute permits only marital children to inherit from fathers. Okamura challenges the total exclusion as an unconstitutional penalty based on her parents' marital status.
Yes. When an unmarried father has established a family unit with his nonmarital child, due process protects his custodial interests and prevents automatic removal of the child upon the mother's death without a fair hearing.
Supporting sources
Unless the will or circumstances show a contrary intention, a nonmarital child is included as a child of the genetic parent when construing a class gift created by that parent.
Supporting sources
No. Such a classification is subject to intermediate scrutiny and must be substantially related to an important governmental objective. A six-year cutoff that does not apply to marital children fails this test when the state offers no evidence linking the deadline to preventing stale claims.
Supporting sources
Yes. The requirement is substantially related to the important interest in orderly estate administration and reducing fraud, so it satisfies equal protection.
Supporting sources
No. An absolute bar based on illegitimacy violates equal protection because it is not substantially related to any important governmental interest and punishes the child for the parents' conduct.
Supporting sources
…not to suggest, at this point, that any of these cases should be overruled, or that the process by which they were decided was illegitimate or even unacceptable, but only to underline Mr. Justice Black's constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary…