Establishing Child Paternity in North Carolina

paternity

Establishing Child Paternity in North Carolina

As mentioned in a previous article, paternity concerns the status of the father and not the child.  There is no single legal definition of the term “father”.  Instead, whether a man is recognized as the legal father of a child are determined by a number of different laws that apply in many different contexts.  A child’s biological father is often the child’s legal father but not in all cases.  Furthermore, a man who is the alleged biological father of a child born out of wedlock and whose paternity has not been legally determined is generally referred to as the putative father. 

Children born to a marriage:

If the mother was married when the child was conceived and/or born, North Carolina law presumes that her husband is the child’s biological father and legal father.  The husband is also presumed to be the father even if the parents were separated when the child was conceived or born.  Pursuant to N.C.G.S. § 130A-101, the husband’s name shall be entered as the father on the child’s birth certificate.  If the husband is the child’s biological father, then there are no further steps to take to establish paternity. 

Children born out of wedlock:

When a child is born out of wedlock, the putative father’s name may be entered on the birth certificate if the mother and putative father complete an affidavit acknowledging paternity, which contains the required information in N.C.G.S. § 130A-101(f). 

Paternity of a child born out of wedlock can be acknowledged for child support purposes in the following ways: a voluntary acknowledgment of parentage, which has the legal effect of a judgment of paternity for the purpose of establishing child support, and by affidavit, which is completed at the hospital, which has the same legal effect as a voluntary acknowledgment of parentage.

 Paternity of a child born out of wedlock can be established in the following ways:

  1. A civil action to establish paternity pursuant to C.G.S. § 49-14 et seq.
  2. A criminal nonsupport action pursuant to C.G.S. § 49-2 in which paternity is established as a prerequisite to conviction
  3. A special proceeding to legitimate a child pursuant to C.G.S. § 49-10 when the mother is not married or pursuant to N.C.G.S. § 49-12.1 when the mother is married to a man other than the child’s biological father
  4. By the subsequent marriage of the mother and the putative father pursuant to C.G.S. § 49-12

North Carolina law requires parents to support their children regardless of their own marital status. When the alleged father of an illegitimate child does not acknowledge his paternity, however, it may be necessary to seek a court order declaring him the father. Such lawsuits may be brought in a North Carolina district court any time before the child’s 18th birthday.

North Carolina paternity law requires “clear, cogent, and convincing evidence” to establish paternity. The most common method for doing so is a blood or genetic marker test. These tests are mandatory for establishing paternity in cases brought more than three years after the child’s birth or after the alleged father’s death. In all cases, blood and genetic market tests are enough to meet the “clear, cogent, and convincing evidence standard,” provided there’s at least a 97% probability of a genetic match between parent and child.  Additionally, if the putative father is living, a civil action to establish paternity of a child born out of wedlock must be commenced before the child’s 18th birthday.

If the putative father has died, the civil action to establish paternity must also be commenced before the child turns 18, AND within one year of the putative father’s death if a proceeding for administration of the estate has not been commenced within 1 year of the death.  Genetic tests are mandatory for establishing paternity after the alleged father’s death.  State law further restricts the ability to seek a paternity order against a deceased father.  While such lawsuits are valid if initiated before the alleged father’s death, after his death suit may only be brought within a limited time frame. If the alleged father’s personal representative has opened an estate, that time period is the same as for the presentation of other claims against the estate, which is 90 days from the publication of a formal notice to creditors. If no estate is opened within a year of the alleged father’s death, a paternity suit may be brought within that same year.

If a court establishes paternity, the father must assume the same duties and obligations to care for the child as if he or she were legitimate. The father also assumes responsibility for medical expenses related to the pregnancy and birth. Paternity does not, however, legitimize the child. That must be done through a separate legal proceeding.

A previously entered court order establishing paternity can be reopened and set aside if the alleged father can both show through genetic testing that he is not the actual father, and that the original order was the product of “fraud, duress, mutual mistake, or excusable neglect.” The burden of proof in such cases is on the person moving to set aside the original order.

 

 

 

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