Using “Nonmarital Child” Instead of “Illegitimate Child”

Nonmarital ChildEstate litigation cases often feature children born outside of wedlock. In those instances, estate litigators face a choice as to what terminology they should use to characterize such children. Selecting the appropriate phrase is not just important for purposes of pleadings and motions (to be read by a judge), but also for purposes of trying a case in front of a jury.

Throughout American history, society has used three main terms to refer to such persons: “bastard children”, “illegitimate children”, and “nonmarital children”. The phrase “illegitimate child” is quickly (and thankfully) falling out of acceptance. There are many reasons why that’s a good thing, with the main one being that society has come to recognize that it’s extremely unfair to impugn an innocent child with a derogatory term, when the child played no role in the manner in which his parents decided to bring him into the world.

These days, estate litigators should almost always used the term “nonmarital child” in their pleadings and in the presentation of their case in front of a jury. This concern is especially significant in the context of the presentation of a case in front of a jury, as the attorney does not know the marital statuses of the jury members (or their parents, their children, relatives, etc.), and it’s quite possible that one or more were born out of wedlock (or have relatives who were), and may have harsh memories of being cruelly and unfairly hazed with such term. It should go without saying that using the phrase “bastard child” in front of a jury these days would almost always backfire on the attorney (and may draw an objection from opposing counsel).

I recently had one of my law student interns from William and Mary’s Law School run a search on the Westlaw legal database, looking into the frequency of the usages of these three phrases (for the non-attorneys reading this, Westlaw is an online database containing every reported judicial decision in Virginia). He searched every Virginia state court decision from the 1700s to current, and found the following about the frequency of usage of these phrases: nonmarital child: 1 use; illegitimate child: 124 uses; and bastard child: 32 uses. While the phrase “nonmarital child” has only appeared in one case so far, it was a very recent case (2012), and it was a ruling handed down by the Virginia Supreme Court, which should serve to set the tone for future decisions by both the Virginia Supreme Court and the circuit courts.

Also telling was the trajectory of the usage of the terms. In the early days of the country, “bastard child” was frequently used, and its usage began to decline in the early 1900s, when “illegitimate child” began to take over as the more popular term (such that by the 1960s, the term “bastard child” was rarely used). Hopefully in the coming years, we’ll see a similar fading away of the term “illegitimate child” and a more widespread acceptance of “nonmarital child”.

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