WHEN DO YOU NEED A COURT ORDER FOR BIRTH CERTIFICATES FROM NEW YORK STATE?
Applying for Italian citizenship jure sanguinis (“by descent”) can be a rather daunting process: you need to collect certified copies of your family’s vital records in order to prove your Italian lineage and eligibility, check that there are no discrepancies in the records, authenticate them with Apostilles and translate them into Italian. These documents must comprise birth, marriage, divorce (if applicable) and death certificates, and proof that the Italian ancestor through whom you are claiming citizenship naturalized or never naturalized. Often, vital records can be requested by signing a form and mailing it to the office which is responsible for issuing them. Some Departments of Health, counties, towns or courts might allow walk-in services, or it might even be possible to request the records online. However, collecting some vital records might not always be as straightforward as expected; this is the case for birth certificates from New York State pertaining to individuals who are deceased. As a matter of fact, if one of your deceased ancestors in your Italian lineage was born in New York State, (this excludes New York City), you must obtain a court order for the Department of Health to issue a certified copy of your ancestor’s birth certificate. If this applies to you, you will find more detailed information below.
General requirements to apply for Italian citizenship
Before we dive into the details of applying for a court order, it is worth highlighting the documents required to apply for Italian citizenship by descent. As you may already know, the specific requirements may vary depending on the consulate to which you apply, however, there are some basic guidelines to follow. Most Italian consulates in the U.S. currently require original certified copies of the records pertaining to the individuals in the Italian lineage and photocopies of their spouses’ vital records. More specifically, as mentioned above, you will need to retrieve certified copies of birth, marriage, divorce (if applicable), and death records for each generation, starting from your ancestor who was born in Italy and emigrated to the U.S. In addition to these, if your ancestor naturalized you need to retrieve his/her Certificate of Naturalization. On the other hand, if your ancestor never naturalized you will need to provide the Italian authorities with a Certificate of Non-Existence of Records. Both records are issued by the United States Citizenship and Immigration Services (USCIS) and the National Archives and Records Administration (NARA). In some cases, naturalization records might also be held by the county in which the naturalization occurred.
When do you need a court order?
Due to New York State’s strict privacy laws, a birth certificate can only be issued to the person the birth certificate pertains to, or to their parent. All other individuals including the registrant’s spouse, child or any other relative, need to apply for a New York State Court Order to be issued a certified copy of a birth certificate. These types of court orders are legally known as Article 78 Proceedings and they are used to appeal against the decision of a New York State agency. Therefore, if you need to retrieve a certified copy of your deceased grandparent or great-grandparent’s birth certificate from New York State, you must file an Article 78 proceeding before the Supreme Court of New York State in order to obtain a court order and finally request a birth certificate from the New York State Department of Health.
Without a court order you may only receive a genealogical copy of the record. Why is a genealogical copy not acceptable, you may ask? The reason is that a genealogical copy is not a certified copy and therefore it cannot be authenticated with an Apostille for use in Italy. In fact, if you apply for Italian citizenship, all of your family’s vital records need to be certified copies, which can be authenticated with an Apostille for use in Italy. However, requesting a genealogical copy might be helpful to ensure that the record you want to obtain exists and that the information on it is correct.
Navigating the official web pages of the New York State Department of Health might be rather daunting. In addition to this, misinformation on personal blogs, and limited information about the topic on official sources might make the process of applying for a court order look even harder. Therefore, it is worth clarifying that you will not need a court order to retrieve a deceased individual’s New York marriage or death record because the procedure established by the Department of Health to apply for those records entails signing a notarized affidavit and providing proof of relationship and proof of death for both parties to the marriage. You will not need a court order if your ancestor was born in any of the five boroughs of New York City. On the other hand, you will need a court order to retrieve your deceased ancestor’s birth or divorce records if these events occurred in New York State.
Do you need a lawyer?
No, but Article 78 Proceedings are usually filed by a lawyer so it might be challenging to collect all the legal paperwork you need by yourself. Therefore, a lawyer is strongly recommended. Usually, Article 78 proceedings need to be filed in the New York State Supreme Court; each county has its own Supreme Court, which is usually located at the County Courthouse.
Before you file the proceeding it is advisable to make sure that you have all the records pertaining to the individual whose records you are requesting, and those of his/her next-in line relatives. In other words, ideally, you need to collect a genealogical copy of your ancestor’s birth record, their marriage and death records and their child’s birth, marriage and death records. The reason for this is that when preparing an application for Italian citizenship by descent, the individuals’ names on all the records need to match as this is the only way for the Italian authorities to verify the applicant’s Italian lineage and eligibility to claim Italian citizenship by descent. Therefore, if you are requesting a court order in order to obtain a birth certificate it might also be worth checking whether there are any discrepancies in the vital records pertaining to the ancestor whose birth certificate you are requesting as you can also use a court order to request an amendment to his/her birth certificate so that his/her name matches the one on the rest of his/her documents. In other words, while some amendments can be requested by signing a form and providing evidence of the correct spelling of the names pertaining to the individuals whose records are being amended, in other cases, such as in New York State, you will need to apply for a court order to amend a record.
Indeed, it was quite common for many Italians who emigrated to the United States to Americanize their names, or for their names do be misspelled. Please bear in mind that it is up to the discretion of the consulate to request that an applicant amends any discrepancies in the applicant’s family’s vital records. Furthermore, whether certain discrepancies are accepted or not largely depends on the individual clerk in charge of evaluating a citizenship application. At ICA we have successfully helped many applicants request a court order in order to retrieve or to amend a record. Therefore, if you are considering applying for Italian citizenship and you would like further information about the topic, please do not hesitate to contact us at [email protected].
