K

                             MATFER OF

                   In VISA PETITION Proceedings

                               VP 3-1-118123

                       Decided by Board July 18, 1958

 Legitimation of children —Poland— Evidence.
Under Polish law, a child born out of wedlock is legitimate or legitimated
 when acknowledged by its natural father. When primary evidence of acknowledgment In the form of a certificate issued by the Polish Registrar is
 lacking, a certificate of birth and baptism showing the father's name may be
 regarded as satisfactory secondary evidence of such acknowledgment.

                           BEFORE THE BOARD

    Discussion: The case comes forward on appeal from the order
 of the District Director, New York District, dated April 3, 1958,
 denying the visa petition on the ground that the beneficiary, having been born out of wedlock and never legitimated. was not entitled to nonquota or preference quota status through her natural
 father.
    The petitioner, a native of Poland naturalized on July 15, 1957,
 at New York, seeks nonquota status or preference status on behalf
 of his daughter, who was born in Poland on May 18, 1939. It is
 conceded by the petitioner that the beneficiary was born to his
 fiancee out of wedlock. However, the petitioner asserts that he in.-
 tended to marry the mother of the beneficiary but that through some
 family misunderstanding the marriage did not take place before the
 birth of the child, that 3 months after the child was born war broke
out and that he has never since returned to Poland. However, he
states that he has always recognized the beneficiary as his daughter
and that while in England in 1948 he sent a document to the Polish
authorities acknowledging paternity of the beneficiary and that she
has been registered in his name.
   The only document the petitioner has been able to submit is a
certificate of birth and baptism issued on the basis of church birth
certificate books for the year 1948 by the Roman Catholic Church
in the parish of the Holy Cross at Warsaw, Poland, showing the
birth of the beneficiary on May 18, 1939, and showing the father's
name as that of the petitioner and the mother's name as A—R .

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The date of baptism is given as May 19, 1948. At oral argument
the petitioner repeated that he had made a statement before a
notary public in 1948 which he had sent to Poland to the mother
of the beneficiary but that he was not aware of whether it was filed
with the church or the civil authorities. The petitioner further states
that the mother of the beneficiary died in 1957, and that he included
the name of the beneficiary in his citizenship papers.
  In order to obtain any status under the immigration laws for
nonquota or preference purposes through the father, it is necessary
that the beneficiary he zither a legitimate or a legitimated child
of the petitioner. It, therefore, becomes necessary to examine Polish
law to determine whether there is any basis for the claim made by
the father that his act of acknowledgement in 1948 constituted a
legitimation of his daughter.
  An article entitled "Children Born out of Wedlock—Poland" appearing in Efignights, Mid-European Law Project, Library of Congress,' is of invaluable assistance in determining whether the beneficiary may be regarded as a legitimate or a legitimated child.
The Poland resurrected after World War II retained civil laws
inherited from the partitioning powers in each of its four parts.
The civil laws of all four jurisdictions, however, had some features
in common in regard to the status of children. None of the jurisdictions any, longer held the old-fashioned concept of bastardy. A
child whose parents were not married was not called an illegitimate
child but a "child born out of wedlock" (dzieko nieslubne). Such
a child had a definite status in all jurisdictions and was a member
of its mother's family with all the rights pertaining to such status.
The child's father was obliged to contribute to its maintenance
although the details varied in the different jurisdictions.
  In 1046 the legal status of children in Poland was regulated by
the statute of January 22, 1946, on the Law of Domestic Relations
and the Decree of January 22, 1946, concerning the enactment of
this statute. Bbth statutes became effective July 1, 1946. The law
of 1946 ruled in Article 51 that a child born out of wedlock shall
have the rights deriving from relationship to its mother or her
family. The law of 1946, however, consequently abandoned the traditional differences between "legitimate" and "illegitimate" children
replacing them with a new distinction reading children born "in
and out of wedlock." It was also made clear that any kind of discrimination against a child born out of wedlock would be abrogated
with retractive effect. Under Article 86 the child acknowledged by
his father shall have the legal status of a child born in wedlock.
  The unified law of 1946 retained the institution of legitimation
by subsequent marriage (Article 63(1) ) as it existed previously,
  Vol. 5, Nos. 9 and 10, Sept. and Oct. 1957, pp. 383 to 394.

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but the institution of legitimation by a decree issued by the state
authorities (pe• rescriptum prineipi8), previously known in Poland
in its various legal systems and still existing in other European
countries, was abolished completely. However, an extraordinary
"quasi legitimation" of children born out of wacllnelr under peculiar
conditions was established. By decree of the guardianship authority—in practice, by a special decision of the county court—a child
born out of wedlock and legitimized by the father's acknowledgement
might be "granted the legal status equal to that of a child born in
wedlock if his parents had actually lived together as husband and
wife or treated the child as if he were their child born in wedlock"
 (Article 69(1)). This rule referred particularly to the extraordinary conditions caused by the Nazi occupation of Poland during the
last war. It was evidently aimed at settling the uncertain status
of these children by removing the legal hardship for which they
could not be held responsible.
  A separate "Code of Domestic Relations" (Kodeks Rodzinny)
was promulgated by the Statute of June 27, 1950, which took effect
on October 1, 1950, and was amended in 1953. The law enforcing
the Code of Domestic Relations of 1950 states in Article 2 that
"all restrictions concerning the legal status of children who do not
descend from the husband of their mother (children born out of
wedlock) shall be abrogated." The new Code of Domestic Relations
abolished all distinction between the legal status of a child born of
legally married parents and that of a child born out of wedlock.
Article 67(2) of the Constitution of the Polish People's Republic
 (of 1952) states that a child born out of wedlock shall suffer no loss
of rights. The Code of Domestic Relations does not draw any distinction at all between the legal status of children born in wedlock
and those born out of wedlock. The abrogation, by the Code of
Domestic Relations, of those differences which were still retained in
the law on Domestic Relations in 1946, represents one of the most
important reforms of this Code? The Code of Domestic Relations
goes so far in regulating uniformly the rights and duties of children without any distinction as to their descent that the term "children born out of wedlock" is not even used any more. ,
   Article 42 of the 1950 Code presumes (1) that a child born during
an existing marriage or before the lapse of 300 days after its cessation or invalidation was fathered by the mother's husband; and (2)
whenever a child is born before the lapse of 300 days after the cessation or the invalidation of die marriage bond, but after tho contract

  2 Seweryn Seer, Prawo Rodzinne (The Law on Domestic Relations), Warsaw :
1954, p. 144.
  t The Code of Domestic Relations; Collected Work, ed. Maurycy Grudzinski
and Jerzy Ignatowiez (Warsaw: 1955), p. 169.

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of another marriage by his mother, it shall he presumed that the
child was fathered by the husband of the first marriage. In addition, Article 43 provides that the father of the child is he who has
acknowledged the child or whose paternity has been decreed by the
court. The acknowledgement of paternity by a person who is not
the husband of the child's mother must be made through the Registrar of Births, Deaths and Marriages or before the guardianship
authority (Article 44 (2)). The consent of the child's mother is
necessary (Article 44 (1)). The acknowledgement has the effect
that the child and the father obtain mutually all rights and duties
deriving from the relationship of parent and child. The child
comes under the parental power of the father, which the father
shares with the child's mother, on the principle of equality of
parental rights. This principle concerns also all other duties and
rights connected with parental power. Between father and child
originates the mutual duty of support; and the child, as well as the
father, obtains all rights of inheritance. Finally, the child is given
the father's family name.
   Since the present legal system does not make any distinction at
all between legitimate and illegitimate ohildren as a matter of
principle, no "legitimation" whatever is known in the Code, nor is
it possible as a constructive institution. Thus, the traditional legitimation of a child born out of wedlock, specifically by subsequent
marriage, is also unknown. Nevertheless, the Code now provides
that whenever the parents of a child born out of wedlock contract
marriage after the child is born, "the child shall use its father's
family name" (Article 37(1)). This, however, does not imply
"legitimation." All that is required to give the child a definite
status equal to that of a child born in wedlock is the establishment
of paternity by court decree or by acknoeleilgtanent by the father.
  According to Article 36(1) of the Code of 1950, "the child shall
use his father's family name." But as long as the question of paternity has not been decided with regard to a child not born out
of wedlock or whose paternity has been successfully denied by the
"husband of the child's mother" (who had been the presumptive
father of this child), and the real father of the child had not yet
been established, "the child shall use his mother's family name if
the father is unknown" (Article 36(1)). Thus, as soon as the
paternity with regard to the child has been established "by acknowledgement by the real father or by judicial decree" the child
obtains his father's family name. In the Registrar of Births the
date left open because of the "unknown father" shall be entered as
soon as the child's father has been identified and legally established,
and the family name of the child finally fixed as corresponding to


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his father's family name (Article 62 of the Statute of the Organization of the Registrar of Births, Deaths and Marriages).
   The provisions of the Code of Domestic Relations (of 1950)—
particularly those concerning the children's status, presented and
discussed above--sli.ill have retroactive effect also on all persons born
before October 1, 1950, the day of enactment of the Code. The law
on the enactment of the Code provides in Article X that the provisions of the Code of Domestic Relations of 1950 shall apply to all
relations concerned by the Code even though they may have originated before the enactment of the Code, unless provision is otherwise made. It should be added that there are no such provisions in
this law providing otherwise concerning the status of children or the
relationship between parent and child. Finally, Article XXVII of
the articles of the Law of August 22, 1950, on the Provisions for the
Enactment of the Code of Domestic Relations, provides as follows:
  Wherever the paternity of the man who is not the husband of the mother
has been determined in any way provided by rules enforced before the day of
the enactment of the Code of Domestic Relations, the child shall, with the day
of the enactment of this Code, obtain all rights and duties of his father and
family following from the Code of Domestic Relations and from this law.
   The petitioner herein has stated that he is the natural father of
the beneficiary, that he has always acknowledged the child as his
own, and that he sent a formal acknowledgement of paternity to the
Polish authorities in 1948. The certificate of birth and baptism
which shows that the beneficiary bears the father's name may be
regarded as a subsidiary document and offers corroboration of the
petitioner's statement regarding acknowledgement in 1948. While
primary evidence of acknowledgement in the form of a certificate
issued by the Polish Registrar of Births, Deaths and Marriages is
lacking, the certificate of birth and baptism may be regarded as satisfactory secondary ericlonso thereof. In view of the summary of the
Polish law which renders legitimate a child acknowledged by its
natural father, it is considered upon the evidence presented that the
beneficiary in the instant case should be regarded as the legitimate
or legitimated child of the petitioner. Accordingly, the visa petition will be approved for nonquota status.
   Order: It is ordered that the visa petition be approved for nonquota status on behalf of the beneficiary.




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