THE CHILD'S STATUS AND RIGHT TO SUPPORT.

The natural consequence of the legal recognition of the married state as a necessary ordinance for the future of the race and the upbringing of children was that children were placed in a different status according as they were born within or outside the legal relationship. The institution of private property and inheritance rights accounted in part for the prestige of the child born in wedlock, since descent on the father's side could be traced only for such children. When the religious element entered in as a means of building up and safeguarding the family relationship the mother of a child born outside marriage, and also the child, suffered not only economic disadvantages but were stigmatized by society. In an effort to stamp out infanticide by unmarried mothers, which was alarmingly prevalent because of the hardships they had to face, church and state sought to prevent illegitimacy by drastic means. Mothers of children of illegitimate birth were severely punished, and the children were treated with disdain and deprived of civil and ecclesiastical rights.

Extra-marital unions throughout civilized time have been held to be inimical to the interest of society and of the child born as a result of such relationships, and various penalties have been provided by modern law; but the social and legal theory has gradually developed that the children are innocent of wrongdoing, and that they are entitled to the benefits enjoyed by children of more fortunate birth. It is recognized that children born without the possibility of a normal home are likely to suffer special hardships, and that they must be protectc with especial care from injurious influences.

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Society early imposed upon the mother, as the child's natural caretaker, the duty of providing for its maintenance. The provision of the Napoleonic Code forbidding inquiry into paternity was until recent years the law in France and other Latin countries. Recognition of the father's responsibility is still partial and incomplete, but there is increasing agitation for placing all children in an equal status in relation to both parents. Where the parents can not or will not fulfill their duties, the interests of society demand that the State must render to the child the care and protection necessary to its proper development.

Legal provisions concerning the child born out of wedlock deal with the legal status of the child, the determination of paternity, and the method of securing support from the father. In addition there have been special measures enacted for the safeguarding by the State of children of illegitimate birth, by virtue of their status, and children born out of wedlock are very considerably affected by State laws for the protection of children who become dependent. These protective measures are included in the later discussion of care and guardianship.

American legislation1 dealing with children of illegitimate birth was enacted at an early period and was based largely upon the English law. In England the child born out of wedlock is still, so far as property rights are concerned, filius nullius-the child of nobody. Under the poor law, however, the mother has been held responsible for the child's support, and under other legislation the father may be compelled to contribute.

In the United States the child of illegitimate birth has been practically legitimized with respect to the mother-the relation of the mother and child born out of wedlock approximating the relation of mother and lawful child. The most important change involved in accomplishing this has been with respect to inheritance. Under the laws of some of the States and, in the absence of a statute, under judicial decisions the mother is charged with the maintenance of her child of illegitimate birth, and under the desertion and nonsupport laws she may be prosecuted for neglect to support the child.

The full legal relation of parent and child is not commonly recognized as existing between the father and his child born out of wedlock, though there has recently been some advanced legislation dealing with this subject. The responsibility of the father is usually recognized by the laws relating to compulsory support, but most of the States recognize only a partial obligation of the father to support his child born out of wedlock. In 12 States 2 the desertion and nonsupport laws are made applicable to the child of illegitimate birth, to the end that the father may also be prosecuted for neglect

1 For a detailed analysis of the legal status of the child of illegitimate birth, see U. S. Children's Bureau: Illegitimacy Laws of the United States and Certain Foreign Countries, by Ernst Freund. Legal Series No. 2, Bureau Publication No. 42. Washington, 1919. California Penal Code 1915, sec. 270 as amended by Laws 1917 ch. 168; sec. 270b, 270d, 271, 271a, 273h. Colorado: Laws 1911 ch. 179 secs. 1-10. Delaware: Revised Code 1915 secs. 3034-3046, 3088. Massachusetts: Laws 1911 ch. 456, secs. 1-4; 5, 6 as amended by Laws 1918 ch. 257 secs. 453, 454; 7; 8 as amended by Laws 1912 ch. 310 (made applicable by Laws 1913 ch. 563 sec. 7). Minnesota: Laws 1917 ch. 213 (made applicable by Laws 1917 ch. 210). Nebraska Revised Statutes 1913 secs. 8614-8616. Nevada Revised Laws 1912 sec. 766. New Hampshire: Laws 1913 ch. 57 sec. 1. Ohio: General Code 1910, secs. 13008-13017; 13018 as amended by laws 1913 p. 913; 13019 as amended by Laws 1911 p. 115; 13020, 13021. Pennsylvania: Laws 1917, No. 145 secs. 1-3; No. 290 secs. 1-6. West Virginia: Laws 1917 ch. 51 secs. 1-9. Wisconsin:

to support it, presumably after paternity is established. The Minnesota law of 1917 makes the person adjudged father liable to all the obligations imposed by law upon the father of a child of legitimate birth, and the Massachusetts law of 1913 makes the father who neglects or refuses to contribute reasonably to the support of the child liable to all the penalties and orders provided in the case of legitimate parents. The law passed in North Dakota in 19171 goes further than any other in this country, declaring that every child is the "legitimate child" of its natural parents, and as such is entitled to support and education to the same extent as if he had been born in lawful wedlock. The child inherits from both parents and from their kindred. However, action to establish paternity must be brought by the mother within a year of the child's birth. In a few States a right of inheritance from the father follows upon adjudication of paternity. In other States inheritance from the father comes only upon acknowledgment or legitimation, while in almost half the States there is no provision for inheritance from the father. 2

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Recent social legislation in the United States has, specifically or by implication, included children of illegitimate birth within the scope of its provisions. One State, Nevada, includes children of illegitimate birth among those entitled to benefit under the workmen's compensation act. Eight States extend the act to acknowledged children of illegitimate birth; three, to children legitimized prior to the injury; and one includes children of illegitimate birth if they were a part of the decedent's household at the time of his death. In some other States the courts have held that children of illegitimate birth were entitled to benefit under the compensation act if they were being actually supported by the father as a member of his family at the time of his death."

The tendency of the courts to hold that children born out of wedlock should not be made to suffer from the wrongdoing of their

1 Laws 1917 ch. 70 secs. 1-4.

For text of illegitimacy laws, see U. S. Children's Bureau: Illegitimacy Laws of the United States and Certain Foreign Countries, by Ernst Freund. Legal Series No. 2, Bureau Publication No. 42. Washington, 1919.

Laws of 1913 ch. 3, sec. 26 as amended by Laws 1917 ch. 233.

4 Idaho Laws 1917 ch. 81 sec. 14; Indiana: Laws 1915 ch. 106 sec. 38; Kentucky: Laws 1916 ch. 33 sec. 14; Louisiana: Laws 1918 No. 38; New Mexico: Laws 1917 ch. 83 sec. 12 (j and k); New York: Birdseye Consolidated Laws (2d ed.) 1917 ch. 67 sec. 3; Virginia: Laws 1918 ch. 400 sec. 40; Vermont: General Laws 1917 sec. 5759.

5 Montana Laws 1915 ch. 96 sec. 6p: Oregon: Laws 1913 ch. 112 sec. 14 as amended

by Laws 1917 ch. 288; Washington: Laws 1917 ch. 120 sec. 1.

New Jersey: Laws 1911 ch. 95 sec. 12 as amended by Laws 1914 ch. 244.

Connecticut: Piccinim v. Connecticut Light and Power Co. (Apr. 16, 1919) 106 Atlantic 330.

Maine Scott's Case (Nov. 12, 1918) 104 Atlantic 794.

parents is illustrated in the Connecticut decision. The court held as follows:

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The children's position in that household was a very different one [from that of their mother]. They were not only innocent of their parents' wrongdoing, but their father, in caring for them, was acting in obedience to the mandate of the law. It was alike his moral and legal duty to maintain them. There is nothing in their own conduct that calls for punishment, and we are unable to discover how the cause of morality is to be advanced by the treatment of innocent children, although born of illicit relations, as so far outcasts from the social and legal pale that they are to be denied the benefit of those beneficial provisions which our law has adopted for the care, welfare, and maintenance of those who, helpless of themselves, are dependent labor of others engaged in industrial pursuits.

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* upon the

By the end of 1919, 39 States had adopted mothers' pension laws. Two of these States-Michigan and Nebraska-specifically make provision for aid to " unmarried mothers," while one State-Wisconsinprovides for a "mother without a husband." In Indiana, Maine, Massachusetts, New Hampshire, North Dakota, and Washington, where the law applies to any mother with dependent child or children, and in Colorado, where it is made applicable to "any parent or parents," it would seem possible to extend the benefits of such laws to the mother of a child of illegitimate birth; yet these States impose such restrictions as to character as may be interpreted to preclude such mothers. In 29 States the benefits of the law extend only to mothers of children born in wedlock.

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The Federal act providing for allotments, allowances, and compensation to dependents of soldiers and sailors includes children born out of wedlock among the beneficiaries, if support has been ordered by court or if the child has been acknowledged by the father.2

The determination of the paternity of children born out of wedlock is usually provided for only in connection with securing support from the father. This is due to the fact that the relation of the father to his child is generally limited to the one obligationthat of contributing to the child's maintenance. The importance of the determination of paternity in connection with birth registration has already been pointed out. Where rights of inheritance from and through the father are given children born out of wedlock the

1 Colorado: Laws 1913 p. 694; Indiana: Laws 1915 ch. 95; Maine: Laws 1917 ch. 222 as amended by Laws 1919 ch. 17; Massachusetts: Laws 1913 ch. 763 sec. 104: Michigan: Compiled Laws 1915, sec. 2017; Nebraska: Laws 1919 ch. 221 sec. 2; New Hampshire: Laws 1915 ch. 132; North Dakota: Laws 1915 ch. 185; Washington: Laws 1915 ch. 135 as amended by Laws 1919 ch. 103; Wisconsin: Statutes 1917 sec. 573f.5 as amended by Laws 1919 ch. 251.

establishment of paternity has still another value apart from that involved in the immediate need for support.1

No one of the United States has made proceedings for establishing paternity compulsory in every case. There is a strong feeling that a mother who does not need assistance from the father and who does not wish to disclose his identity should not be compelled to do so. On the other hand, the movement for complete birth registration including the names of both parents, as a matter of justice to the child and for more adequate protection of children handicapped by the circumstances of their birth, may result in more general requirements for the determination of fatherhood.

Legislation in the United States compelling the father to contribute to the support of his child born out of wedlock3 originated in the desire to protect the public from the necessity of supporting such children rather than from concern for their welfare. While this principle had been somewhat modified in favor of the mother and the child, few radical changes were made until recent years. Within the last decade there has been a marked change in social emphasis, the child's welfare being made the predominant consideration, accompanied by the recognition of the State's responsibility. Laws in accordance with this trend have already been enacted in some States, and in a number of others bills embodying radical changes have been given serious consideration.

The present law of Oregon is an illustration of a liberal type of provision for the child's maintenance, not yet very common in the United States. The law makes the father chargeable for the expenses incurred by a county or by the mother for the lying-in and attendance of the mother during her sickness and states that "the judgment of the court providing for the maintenance of such child by the father shall be in yearly sum not less than $100 nor more than $350 for the first two years, and not less than $150 nor more than $500 for each succeeding year until the child reaches the age of 14 years."

The laws of the Scandinavian countries relating to children born out of wedlock are recognized as setting standards in advance of those prevailing in most countries. The Norwegian law which became effective January 1, 1916, gives a child born out of wedlock the

1 For a discussion of the value of an early adjudication of paternity see Hart, Hastings HI. The Registration of Illegitimate Births; a preventive of infant mortality. Department of Child-Helping, Russell Sage Foundation, New York City, March, 1916. 2 The laws of five States-New Jersey, New York, North Carolina, South Carolina, and Tennessee-contain provisions requiring the mother, under penalty, to disclose the name of the father in cases in which the child is likely to become a public charge.

3 For a detailed discussion of support provisions, see U. S. Children's Bureau: Illegitimacy Laws of the United States and Certain Foreign Countries, by Ernst Freund. Legal Series No. 2, Bureau Publication No. 42. Washington, 1919.