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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