While Leonardo da Vinci, Queen Elizabeth I, and Alexander Hamilton would appear to have almost nothing in common they did share the same legal status: they were considered illegitimate children. Leonardo da Vinci and Alexander Hamilton were born to single mothers whereas Queen Elizabeth I acquired the “title” when her parents had their marriage annulled. Illegitimacy was once a fluid concept that could react to the marital status of the child’s parents.
The word “illegitimacy” is derived from the Latin word “illegitimus” which means “not in accordance with the law”. In essence, an illegitimate child was seen as being unlawful. As such, they were described as “Filius nullius” which was an English common law legal phrase (and subsequently of the American Colonies) which literally meant, “no one’s child”. Under the common law, they truly were no one’s child whereas the child had no right to carry their father’s name, be supported, be in certain professions, or inherit.
While the Colonies were being founded by people who sought religious freedom, their own religious beliefs impacted the law. Marriage was seen as the only appropriate venue to produce children. Hence, procreation either prior to marriage or as a result of adultery was criminally punished. Punishment ranged from public whippings to fines. Between 1639 and1666, Puritan Connecticut attempted to induce men to take accountability for their illegitimate child by calling for the whipping of the child’s mother. It was thought that a man would not allow the mother of his child to be struck and hence, he would come forward as the father. In 1668, Massachusetts, another Puritan state, believed that women who named the father of their illegitimate child during labor were being honest because it was assumed the pain of labor would induce honesty. The allegation was so strong it held legal significance.
While there was no single experience for these children in Colonial America, many were left to fend for themselves which eventually led churches and towns to care for these children. “No one’s children” became coined, "children of the parish" or "children of the borough". The government which originally saw these children as evidence of moral failures now saw them also as financial liabilities.
The state’s financial liabilities spawned a change in the law: financial responsibility, to some degree, of the biological parents for the support of their illegitimate children. At this time, support came in the name of a “bastard bond”. First, the State would issue and file a complaint and warrant to question the mother. Once a father was named and determined to be the father, he would post a “bastard bond” to insure payment for the support of the child. (If the father was unknown, the mother and/or some other person would post bond. Sometimes, the parents would jointly post bond.) While “bastard bonds” originated from early English common law, records only support them in Colonies starting in the 1700’s and were applied to some, but not all children. Eventually, the support proceeding graduated in to what was called a filiation proceedings (from the Latin word filiation which means relationship of a son and father). The purpose of this proceeding was to determine both paternity and support of the child. Depending on the state, the action was civil, criminal, or mixed. Even with laws which required support, few illegitimate children were getting support even into the 19th century.
Initially, the mother, generally, of the illegitimate child was awarded custody. Although, it was possible for the father to obtain custody based on the early “best interest factors” which included: “ties of nature and of association, the character of the applicant for the child, its age, health and sex, the moral or immoral surroundings of its life, the benefits of education and development, and pecuniary prospects, as well as other considerations…” and the child’s wishes if the child had the “mental capacity” to state a wish.
By the late 1800’s, “maternity” or “unwed mother” homes were established to abate the “problem” of illegitimate children. The first established by the Salvation Army in 1886. While adoption was an option, the early homes encouraged women to keep their babies. Maryland, in 1916, criminalized the act of placing a child outside of the home and not breastfeeding so i. At the same time, single mothers were often denied government assistance based on their status which left single mother led homes in poverty.
By the 1940’s and 1950’s, due, in part to the liberalization of sexuality and corresponding lack of reliable birth control, there was a significant increase in the number of unwed pregnant mothers. Many of these young women were sent to “unwed mother homes”. Frequently, these women reported feeling coerced into giving their babies up and were completely isolated from their families and friends. In the 1960’s two million babies were put up for adoption (for comparison sake, 14,000 were put up for adoption in 2003). Adoption, by white mother’s, was encouraged based on the belief that unmarried white women who had children had to be suffering from disorders and that separating the mother from the child would be best; whereas for black mother’s it was discouraged. Due to the explosion of illegitimate children, the period of time from after WWII through the mid-1970’s was referred to as the “baby scoop” generation.
In 1968, the US Supreme Court heard, Levy v. Louisiana. While ultimately not a family law case, the case dealt with the ability of an illegitimate child to sue on behalf of their deceased parent. The Court found for the child, but in doing so stated the grounds for the lower court’s denial which was: "based on morals and general welfare because it discourages bringing children into the world out of wedlock." In 1973, the Supreme Court decided Gomez v. Perez, a Texas case, where the issue related to constitutionality of a Texas statute which required only fathers of legitimate, but not illegitimate children (even those who were acknowledged by the biological father to be their child) to provide support. Ultimately, the Supreme Court decided that the statute was unconstitutional. While Texas amended the law to allow for a father or a mother of an illegitimate child to obtain support, the action had to be brought no later than one year after the child’s birth or the right would be forever lost. (13.01 (Vernon 1975). (Seven years later, Texas was back to the Supreme Court where in, Mills v. Habluetzel, the Court found the statute unconstitutional.)
By the 1970’s, fathers of illegitimate children were finally being recognized as caregivers by the Courts. The landmark case of Stanley v. Illinois, ordered that the State cannot presume, based on the 14th Amendment that an unmarried father is unsuitable ”and/or“ neglectful parent and that fitness of a father must be made on an individual basis. In 1979, California took the historic step of passing a law which allowed for joint custody which opened the door for fathers to have an equal (or at least recognized) part in parenting. Coupled with the emergence of the child development field which emphasized the important role of fathers in raising children, the Courts because to change their view on the role of fathers.
Today, 40.2% of babies are born to unwed mothers; babies that have the right to take the name and to inherit from each parent and the right to the same government benefits regardless of their parents’ marital status. The terms “bastard” and “illegitimate” have been replaced in Minnesota law entirely. While “unwed mother homes” still exist, they exist in the capacity to provide support (education, medical, mental health, and job training) for expecting and new mothers. Over half of parents have formal or informal child support agreements and over 17% of fathers are custodial parents. We have come a long way!
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