When a child is born to married parents in North Carolina, the law presumes the mother’s husband to be both the biological and legal father of the child. However, if the child was born out of wedlock, paternity must be legally established for the father to have the same rights that they would have had if they were married to the mother. There are a few ways to establish paternity in North Carolina, and doing so can provide both the child and the father with a number of benefits.
By establishing paternity, certain legal rights, duties, and responsibilities are conferred to the father, including custody and child support obligations. It can also help to ensure the father remains active in the child’s life and allow them to build a meaningful parent-child relationship. Not only does a father have a legal right to parenting time when paternity has been established, but they can also contest custody should the mother be unable or unfit to care for the child.
Establishing paternity is also crucial for the child. When paternity is established, a child can learn more about their identity and medical history. Since many health conditions are genetic, having access to the father’s health records can allow the child to gain insight into their own health risks and any proactive measures they can take to minimize them.
In addition, paternity can provide a child with inheritance rights if the father passes away. The child may also have the right to be covered by the father’s health insurance, and qualify to receive social security or veteran’s benefits.
Without first establishing paternity, a father has no parental rights. In other words, he would not be legally entitled to visitation or permitted to make decisions that affect the child’s welfare. Importantly, when paternity is determined, there are a number of custodial arrangements that may be considered.
A father might wish to share physical custody with the child’s mother, or he may only petition for visitation rights. He may also agree to allow the mother to have sole physical custody but request joint legal custody. With joint legal custody, a father for whom paternity has been established may have a right to:
After establishing paternity, the parents can work out a custody arrangement and parenting plan outside of court and submit it to the judge for approval. If custody is disputed, and the parents cannot reach an agreement, the court will determine the outcome. However, while paternity and custody are interrelated, it is essential to understand that custody is a separate proceeding from a paternity action.
If a child is born to unmarried parents, there are several ways paternity can be established in North Carolina. Paternity is automatically established if the mother and alleged father subsequently marry. Otherwise, a father can voluntarily acknowledge paternity by signing an “Affidavit of Parentage.” This is typically done at the hospital shortly after the child is born, but it can also be signed at a later time in front of a notary if there is any question about paternity.
Another way to establish paternity is through the court. A North Carolina paternity proceeding can be filed by the father, mother, child, or the state’s child support division at any time before the child turns 18. A judge must find “clear, cogent, and convincing evidence” to issue a finding of paternity. The results of genetic marker tests or blood tests are generally sufficient to satisfy this standard.
Additionally, genetic testing is mandatory in cases commenced after a child is over three years old or after the alleged father has passed away. Notably, there is only a limited amount of time for a paternity action to be commenced after the alleged father’s passing. If proceedings for the administration of the estate have not yet commenced, an action for paternity must be brought within one year of the date of death.
Establishing paternity does not legitimize a child. Legitimation is a separate civil proceeding that can be commenced by the biological father of a child born to unmarried parents at any time during the child’s life. Unlike in a paternity action, which is used to determine parentage and gives a biological father parental privileges, legitimation concerns the child’s status. Notably, when legitimation occurs, there is no longer a question of paternity.
A father can apply to the court to declare the child legitimate by filing a verified, written petition in a special proceeding. While the child, the mother, and any father listed on the birth certificate must be part of the proceeding, only the child’s father seeking legitimation can bring this action. A child can also be declared legitimate if the father later marries the child’s mother.
Paternity matters can be complex, emotional, and overwhelming. It’s vital to have an experienced family law attorney on your side to guide you through the process and protect your rights. With offices located in Moyock and Elizabeth City, The Twiford Law Firm provides compassionate counsel and dedicated advocacy for paternity issues and a wide variety of family law matters throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation to learn how we can help.