PROLE. – From proles, meaning offspring, that is, the group of children, the subjects of rights and duties within the family. The natural instinct that places relations between parents and children on a foundation of mutual affection is sublimated by the positive divine precept that prescribes: “Honor your father and your mother, so that you may live long in the land that the Lord your God will give you” (Ex. 20:12; Deut. 5:16; Eph. 6:2–3). This commandment lays the foundations of the well-being of the family, which is an august institution of God.
The entirety of relations between parents and children is governed by the virtue of piety (v.). Under the heading “parents” are indicated the particular duties and rights of parents with respect to their children; what remains to be said here concerns the specific duties of children toward their parents and the juridical status of children.
I. DUTIES OF CHILDREN
I. Children owe their parents: a) love, both inward and outward. They therefore sin, even gravely, if they hate their parents; if they show that they hate their parents in private, and still more in public; if they do not assist them in their spiritual and material needs; b) respect, which must be shown in words, signs, and deeds. The gravity of the fault must be assessed by considering not only the matter in itself but also the circumstances; c) obedience, in all lawful matters and for as long as they remain subject to their authority: in practice, for as long as they live in the paternal home and receive their maintenance from their parents.With regard to the choice of a state of life: a) children are not, in themselves, bound to obey, except in extraordinary cases out of filial piety toward their parents; b) they must seek their parents’ advice if the matter concerns marrying this or that person, but they are not bound to obey; c) if the matter concerns choosing the religious or priestly state, it is not even obligatory to seek advice, and often it is inadvisable. With regard to the choice of a profession, relatives may not impose themselves upon their children, although it is useful for the latter to follow their advice.
Property relations. According to natural law, children, even minors, are capable of possessing and acquiring goods, which the father will have the right and duty, ex pietate, to administer in the children’s interest if, because they are minors or otherwise legally incapable of acting, they are subject to him. The goods belonging to the children may be divided into two categories: a) goods coming to them by transfer from previous owners, through donation, inheritance, or bequest; b) goods deriving from the personal exercise of an art, industry, and, in general, remunerated work. The children hold ownership of the goods in both categories, and the parents may not appropriate them without violating justice. The children, for their part, may in turn have obligations toward their parents with regard to such goods, obligations which particular law and custom determine in greater detail.
II. LEGAL STATUS OF P
1. Preliminary remarks
Catholic doctrine concerning the respective competence of the Church and the State with regard to determining the status of p. may be summarized in the following points: a) that offspring born of a valid or putative marriage are legitimate is an inseparable effect of marriage, and is therefore regulated by divine law and canon law, not by civil law; the same applies to legitimation by subsequens matrimonium: b) when offspring would not be legitimate by reason of having been born during a marriage, nor would they be legitimated through legitimation by subsequent marriage, both the Church and the State have the power to grant them legitimation by other means, with more or less complete effects, but only within the sphere of their respective competence—that is, the State may grant legitimation only with civil effects, and the Church only with canonical effects (except in exceptional cases, propter bonum religionis); a fortiori, therefore, the State has the power to admit, always limited to civil effects, not true legitimation, but recognition with limited effects.2. Canon law
Under can. 1114 CIC, a legitimate child is: a) one who is conceived (understood to be through the agency of the mother's husband) during a valid or putative marriage, even if born after the dissolution of the marriage or after the marriage has ceased to possess the quality of being putative (cf. on this, can. 1015 § 4); b) one who, although conceived outside marriage (that is, through the agency of a man who, at the time of conception, was not the mother's husband), was born when the father was united in a valid or putative marriage with the mother (or perhaps also when such a marriage, contracted after conception, had already been dissolved and was no longer putative).An illegitimate child is one who was neither conceived nor born of a valid or putative marriage. A child is also illegitimate if, although conceived during a valid or putative marriage, and therefore falling under case a, at the time of conception one of the two parents was bound by solemn profession or by Sacred Orders, and the use of marriage was therefore illicit (even if the parents were unaware of this).
To determine whether someone was conceived during marriage or not, and whether conception occurred through the agency of the mother's husband or through that of another man, given the almost absolute impossibility of direct proof, the two presumptions established in can. 1115, both iuris tantum, are of assistance in many cases; they complement one another. The first consists in the presumption that anyone born after 180 days from the celebration of the marriage (valid or putative) and no more than 300 days from the cessation of conjugal life was conceived through the agency of the mother's husband—in other words, is presumed to be his child. The presumption is overturned only if the contrary is established by clear evidence, that is, if it is demonstrated that it was impossible for the child to have been conceived through the agency of the mother's husband (e.g., if there was no conjugal act between the spouses during the period between the three-hundredth and the one-hundred-eightieth day before the child's birth). The second presumption is a presumption of legitimacy in favor of a child born after 180 days from the celebration of the marriage and no more than 300 days from the cessation of conjugal life; in other words, this child is presumed to have been conceived during the marriage and through the agency of the mother's husband, unless the contrary is proved.
A child born within the first 180 days after the celebration of the marriage is presumed neither to have been conceived during the marriage nor to have been conceived through the agency of the mother's husband; if, however, conception through the agency of the mother's husband is proved (e.g., if he acknowledges the child as his own), the child is nevertheless legitimate, falling under case b mentioned above. Likewise, a child born more than 300 days after the cessation of conjugal life is presumed neither to have been conceived during the marriage nor to have been conceived through the agency of the mother's husband; and, since the child was not born during the marriage, it is to be regarded as legitimate only if both these facts are proved. If any of the facts underlying these presumptions is doubtful (a frequent occurrence, e.g., in the case of foundlings), the child cannot be considered illegitimate and must therefore be considered legitimate, even if one or both parents are unknown.
An illegitimate child is also called a natural child. In the strict sense, however, this second designation is given to those illegitimate children whose parents, either at the time of conception or at the time of birth, or at least at some point during the pregnancy, were free from any diriment impediment or other incapacity (e.g., mental illness) to marriage. The other illegitimate children are called spurious children; among these are distinguished those osti ex damnato estiu, namely, adulterine, incestuous, and sacrilegious children: children whose parents (or one of them), throughout the period from conception to birth, were respectively prevented from marrying by the impediment of a prior bond (v. LIGAMEN), or by Sacred Orders or religious profession (v.) (cann. 1072-73), or by consanguinity or affinity (cann. 1076-77).
The CIC establishes various prohibitions concerning illegitimate children: thus, they are irregular ex defectu (can. 984 n. 1); they may not be admitted to a seminary (can. 1363); they are excluded from the dignities of cardinal (can. 232 § 2, n. 1), bishop (can. 331 § 1, n. 1), and abbot or prelatus nullius (can. 320 § 2); they may not be elected major superiors of religious Orders or Congregations (can. 504); particular provisions also exclude them from the offices of auditor of the S. R. Rota, consistorial advocate, etc. Dispensation from all these prohibitions is possible. For other provisions concerning illegitimate children, cf. cann. 90 and 777 § 2. An illegitimate child may acquire a legal status similar to that of legitimate children through the so-called legitimation, which in canon law takes place: a) if the parents contract a valid or putative marriage with one another, provided that the child is a natural child in the strict sense, not a spurious child; the convalidation of the marriage is equated with its celebration (can. 1116); b) if the parents are granted a dispensation from a diriment impediment, provided that the child has already been born or at least conceived at the time the dispensation is granted (can. 1051); c) if the Holy See (for the faithful of the Latin rite, normally the S. Congregation of the Sacraments) grants legitimation by way of grace.
Children legitimated by the subsequent marriage of their parents are equated, in canon law, with legitimate children; but they remain incapable of being appointed cardinals (can. 232 § 2, n. 1), bishops (can. 331 § 1, n. 1), and abbots or prelati nullius (can. 320 § 2). The effects of legitimation by rescript of the Holy See are regulated in the rescript itself. Legitimation by dispensation from a diriment impediment (which always concerns spurious children) perhaps removes only the irregularity ex defectu referred to in can. 984 n. 1.
If the marriage of the parents is sanated in radice (v. II), the illegitimate children come to occupy the same position in which they would have found themselves if, at the time to which the effects of the sanation are retroactive (cf. can. 1038 §§ 1-2), a valid marriage had been celebrated and, if the sanation included dispensation from an impediment, such dispensation had then been granted: sanation in radice may therefore result in a spurious child being considered legitimate (not merely legitimated), or in the child being legitimated under can. 1051, even though in reality the child was born after the granting of the dispensation.
3. Italian law
Under Italian law, a child is legitimate only if conceived during a marriage (valid or putative) through the husband of the mother; a child is illegitimate if not conceived during the marriage or not conceived through the husband of the mother.In order, where there is doubt, to favor the child’s legitimacy, the law establishes an absolute presumption (thus admitting no evidence to the contrary) that a child was conceived during the marriage if born after 180 days have elapsed from the celebration of the marriage and before 300 days have elapsed from its dissolution or annulment (art. 232 of the Civil Code). It further presumes that the husband is the father of a child conceived during the marriage (art. 231 of the Civil Code), unless the husband disavows the child; this, however, may occur only in the following cases (art. 235 of the Civil Code): 1) if, during the period from the three-hundredth to the one-hundred-eightieth day before the birth, he was physically unable to cohabit with his wife because of absence or some other circumstance; 2) if, during the aforementioned period, he suffered from impotence, even if this was merely impotence to beget; 3) if, during the same period, he was legally separated from his wife, including by virtue of a temporary order of the magistrate, unless the spouses had resumed living together, even if only temporarily; 4) if, during that period, the wife committed adultery and concealed her pregnancy and the child’s birth from her husband. In the latter case, the husband is permitted to prove any other fact tending to exclude paternity. Finally, the law also considers legitimate a child born within the first 180 days following the celebration of the marriage, while allowing the husband to disavow it; disavowal may not, however, take place if the husband was aware of the pregnancy before the marriage, or if the birth certificate shows that the declaration of birth was made by him or by a special representative of his (art. 233 of the Civil Code). An action for disavowal is in every case subject to strict time limits (generally three months from the time the husband learned of the birth, or is presumed to have learned of it: arts. 244 and 247 of the Civil Code).
The status of legitimate or illegitimate child has no effect in civil law (unlike canon law) outside family and property relations between parents and children. Within this sphere, however, there are considerable differences in the treatment of the two categories of children. The fundamental rules on the matter are contained in the Constitution, which, after stating in art. 29 that “the Republic recognizes the rights of the family as a natural society founded on marriage,” adds: “It is the duty and right of parents to support, instruct and educate their children, including those born outside marriage… The law assures children born outside marriage every legal and social protection compatible with the rights of the members of the legitimate family. The law establishes the rules and limits for the investigation of paternity.” (art. 30).
Although enacted before the Constitution, the Civil Code may be regarded as substantially consistent with the principles stated therein. In essence, it distinguishes four degrees of treatment, according to the different factual and legal condition of illegitimate children, namely: a) a child whose paternity or maternity is not established in any of the ways described in the following paragraphs: the child has neither rights nor duties toward the parents; b) a child whose paternity or maternity is established indirectly by a civil or criminal judgment, or by an unequivocal written declaration of the parents, or derives from a marriage declared null: the child is entitled to support and to a life annuity charged to the parent’s estate (arts. 279, 580, 594 of the Civil Code); c) a child acknowledged by the father or mother, or whose paternity or maternity has been judicially declared: the child has rights to support and succession analogous to those of legitimate children (but to a lesser extent or degree), and is obliged to provide support to the parent who acknowledged the child or whose parenthood has been judicially declared (arts. 435, 539, 541-43, 545-46, 573-79 of the Civil Code); moreover, the parent has toward the child the rights arising from paternal authority, except legal usufruct (art. 260 of the Civil Code), and must support, educate and instruct the child (art. 261 of the Civil Code); the child takes the surname of the father, or, if acknowledged only by the mother, her surname (art. 262); d) a legitimized child: in every respect placed on an equal footing with a legitimate child.
The most important rules concerning acknowledgment, judicial declaration and legitimation are recalled here.
Acknowledgment may be made only by a father who has reached the age of 18, or by a mother who has reached the age of 14, unless it takes place on the occasion of their marriage. It may be made either in the birth certificate or by a declaration (made at least after the child’s conception) before the civil-status officer or the guardianship judge, or in a notarial instrument or a will. Incestuous children (that is, those whose parents are related or related by affinity in the direct line, or related in the second degree of the collateral line) may be acknowledged only by parents who, at the time of conception, were unaware of the existence of the relationship or affinity. Adulterine children may not be acknowledged by the parent who, at the time of conception, was married, unless that marriage was dissolved by the death of the other spouse; and, if legitimate or legitimized children or legitimate descendants exist as a result of that marriage, the acknowledgment has no effect unless admitted by decree of the president of the Republic, with observance of certain safeguards established by law (arts. 250-68).
A judicial declaration of paternity or maternity may be sought by the child (or, if the child is dead, by the descendants) or by the child’s legal representative. Limitation periods are established for a declaration of paternity; moreover, it is admissible only in the following cases: a) if the mother and the alleged father notoriously lived together as husband and wife during the period to which the conception is attributable; b) if paternity is established indirectly by a civil or criminal judgment or by an unequivocal written declaration of the alleged father; c) if there was abduction or carnal violence during the period corresponding to that of conception; d) if there is possession of the status of a natural child. The paternity or maternity of an incestuous child may not be judicially declared; nor may that of an adulterine child if the marriage from which the adultery derives is still in existence, or if legitimate or legitimized children or their legitimate descendants exist from that marriage (arts. 269-79; V. also PATERNITÀ, ricerca della).
Legitimation, which may concern only children whose acknowledgment is not prohibited, takes place: a) automatically, through a subsequent marriage contracted by the parents with each other, provided that they have acknowledged or acknowledge the child; b) by decree of the president of the Republic, upon the application of at least one of the parents who has no legitimate or legitimized children by subsequent marriage and no descendants from them, provided that it is impossible, or at least extremely difficult, to legitimate the child by subsequent marriage (arts. 280-90).