Can a Child Born Out of Wedlock Acquire His Father's US Citizenship

By: Aurora Vega-Buzon, Esq.

Rey, a 58 y/o civilian engineer with the federal government and also a US Navy retiree decides to opt for an early (2nd) retirement and go home to the Philippines. After all, he has been divorced for 2 years from his wife (after 32 years of marriage) and his 2 children are both in their late 20s, professionals with budding careers and raising their own families. To his shock, his girlfriend of 6 months in the Philippines tells him she is 3 months pregnant. His girlfriend begs him to bring her to the US as a fiancée so she can give birth here to a US citizen child. Rey wants to enjoy his retirement as a single man and is not keen on getting married or in bringing his girlfriend to the US as a fiancée. So he tells his girlfriend that because he is a US citizen, any child of his is automatically a US citizen even if born in the Philippines. Is he right?

No. Rey's child is not an automatic citizen but can acquire citizenship by derivation as long as several requirements are satisfied. Establishing that Rey's child, who will be born out of wedlock, is a US citizen will require substantial documentation. According to the Immigration and Nationality Act, either Rey, his girlfriend or his child, has to prove all the following:

1) Blood relationship between Rey and the child is established under clear and convincing evidence;

2) Rey is a US citizen at the time of his child's birth;

3) Rey has agreed in writing to support the child until he/she reaches the age of 18; and

4) While the child is under 18, (i) the child is legitimated (under Philippine law, that means Rey has to marry the child's mother); or (ii) the child's paternity is established – either by Rey acknowledging in writing under oath that he is the child's father; or a competent court issues a decision that the child is Rey's child.

There's more. In order to transmit citizenship to his illegitimate child, Rey has to prove that he has satisfied the "residence or physical presence requirement". In Rey's case, since the child will be born in 2011, Rey has to prove that prior to the birth of his child, he has resided or was physically present in the US or its outlying possessions for 5 years, 2 years of which were after he was age 14. Adjudicating citizenship of a child born out of wedlock based on father's US citizenship vary depending on depending on the laws in effect at the time of the child's birth: before November 14, 1968; November 14, 1968-November 13, 1971; November 14, 1971-November 13, 1986; and on or after November 14, 1986.

Because transmitting citizenship to a child born out of wedlock is not simple, it is always best to consult an immigration attorney.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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