A child born in North Carolina to unmarried parents does not have the same legal rights and privileges with regard to the biological father as a child born to married parents. A specific law establishes a procedure to ensure that the child has those privileges (NC General Statutes, Ch. 49, Art. 2). The statutory process is called "legitimation." It is also sometimes referred to as "legitimization."
There are two situations in which a legitimation petition can be filed to provide full rights and privileges for a child born to unmarried parents:
In either situation, the child’s biological father — and only the child’s father — can bring an action in court to have the child declared legitimate. The father can file a legitimation petition at any time, even after the child is an adult. The child and the child's mother, if living, are parties to the proceeding. If the mother is married to another person, that person is also a party to the action.
There is one situation in which a legitimation action is not necessary: If unmarried biological parents of a child get married after the child is born, the child automatically is legitimate without any court proceeding.
A legitimation order confers on the child all the same rights and privileges of a child born to a married couple. In the absence of legitimation, a child born to unmarried parents would not have those rights. Those rights include:
In addition, after legitimation, the father of the child has the same parental legal privileges, rights, and obligations as the mother. Those rights include the father’s ability to inherit from the child, or to bring an action in the event of the child’s wrongful death.
Following legitimation, vital records, including the child’s birth certificate, are updated to show the name of the child’s father. While the statute permits the child’s surname to be changed on the birth certificate at the same time, North Carolina courts have determined that the mother must consent to the name change.
Legitimation and paternity are completely different and separate legal proceedings. A legitimation petition is about the status of the child, even though it also affects the privileges, rights, and obligations of the father. After a child is legitimated, paternity is no longer an issue. A paternity action addresses the status of the father as the biological parent of the child. Establishing paternity does not legitimate a child.
The differences between legitimation and paternity include:
North Carolina laws relating to a child born to unmarried parents can be difficult to navigate. If you have questions about legitimation, our family and domestic law attorneys at can help. With offices in Elizabeth City and Moyock, The Twiford Law Firm serves clients throughout northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.