Petitioning An Illegitimate Child

A child born out of wedlock (illegitimate child) may obtain immigration benefits through the natural mother or father.

It used to be that a child born out of wedlock could derive benefits only through the mother. The law now allows the child to obtain benefits through the natural father if the father has or had a bona fide parent-child relationship before the illegitimate child turned 21.

A bona fide parent-child relationship exists, “where the father demonstrates or has demonstrated active concern for the child’s support, instruction and general welfare.”

A bona fide relationship may be shown by proof of emotional ties such as regular communication through letters; attendance of major events in the life of the child like birthdays, graduations; notarized affidavits of friends, neighbors, school officials and other knowledgeable persons who would attest to the existence of a parent-child relationship between the petitioner and the beneficiary.

It is also shown through evidence of financial support such as shouldering educational, medical and miscellaneous expenses in support of the child. This support may be proven by canceled checks, wire transfer receipts, money orders, medical or insurance records, and school records.

Also, an illegitimate child may be subsequently legitimated under the law. Legitimation is “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock”.

The child may be legitimated under the law of the child’s residence or domicile or under the law of the father’s domicile or residence, if such legitimation takes place before the child is 18 years old and the legal custody is with the legitimating parent or parents at the time of the legitimation.

Legitimation occurs when the natural parents subsequently marry or if there is a judicial decree or formal recognition of paternity or open/notorious acknowledgment of paternity.

Paternity may be established through primary evidence as when the father’s name is indicated on the birth certificate or through secondary evidence such as medical or school records or blood or DNA tests.

There are countries that do not distinguish between children born in or out of wedlock, in which case, as long as a bona fide parent-child relationship is established, the child is considered a child for immigration purposes. Examples are the Dominican Republic, El Salvador, Trinidad and Tobago, Ecuador, Cuba, Yugoslavia, Bolivia, Honduras and Guatemala

In the Philippines, legitimation takes place only through subsequent marriage of the natural parents of the child who have the capacity to get married and no legal impediments to enter into marriage.

To petition for a child, an I-130 form needs to be filed along with the appropriate filing fees and documentary evidence establishing the parent-child relationship.