Establishing Paternity by Civil Action
A man who may be a child’s father, but who was not married to the child’s mother before the child was born and who has not established the fact that he is the father in a court proceeding is known as a “Putative Father”. A putative father can establish himself as the father for purposes of legal custody/visitation and/or child support by filing an action for paternity and/or legitimation. The effect of each, however, is not the same.
If paternity is established, the father is obligated to pay child support (or entitled to receive child support) and is entitled to have rights regarding the custody/visitation of the child. If a putative father legitimates a child, that child is deemed to be the legal child of said father for all purposes, including inheritance.
Paternity
Establishing paternity is the process of determining a father’s legal status to that of his biological child born out of wedlock. In a trial of any civil action to establish paternity, the court can order the mother, the child, and the putative father to submit to paternity tests, such as DNA testing. The results of the paternity test have the following possible effects:
- If the probability of paternity of the alleged father is less than 85%, the alleged father is presumed not to be the father. It is still possible to argue the results in court, and it can be rebutted by clear and convincing evidence.
- If the tests show that the alleged father is not excluded and that the probability of paternity is between 85-97%, the results are admitted as evidence by the court and are weighed with other competent evidence.
- If the alleged father is not excluded and the probability of paternity is 97% or higher, the alleged father is presumed to be the father and the results are admitted as evidence by the court. This presumption can only be rebutted by clear and convincing evidence.
- If more than one testing expert is involved and there is a disagreement as to the results of the tests, then the court weighs all the evidence in making a determination.
Conversely, the establishment of paternity can also be overturned and set aside if the alleged father can prove that he is not the child’s biological father and that his paternity was established through the use of fraud, duress, mutual mistake, or excusable neglect, if a timely action is filed.
Legalizing a Child’s Status by North Carolina Law
Legitimation is the process of legalizing the status of a child born out of wedlock. This legal procedure places a child in a more favorable position in the eyes of the law than mere establishment of paternity or establishment of a duty to support the child by a putative father by means of executing an Affidavit of Parentage. A legitimized child becomes the legal offspring of a putative father and the natural mother for all purposes, including inheritance.
A child in North Carolina can be legitimized by:
- Request of the father—The putative father can file a written petition with the Clerk of Superior Court, stating that he is the father of the child and asking that the child be declared legitimate. If the Clerk grants the legitimation, a new birth certificate is issued.
- Subsequent marriage—The child is automatically given legitimate status when the mother and the child’s putative father marry after the birth of the child. When this happens, a new birth certificate for the child is issued.
Effect of Marriage of the Mother
A mother’s marital status at the time of conception or a child’s birth has the following effects:
If a mother is married at the time of either conception or birth, there is a presumption that her husband is the father of the child. It is important to understand the effect of the mother’s marital status when determining the legal paternity of the child, particularly for purposes of determining an obligation for child support and the determination of whose names will be on the child’s birth certificate. Legitimation and paternity are important issues for all families. Below are excerpts directly from the North Carolina General Statutes.
- If the mother was married at the time of either conception or birth, or between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, and the surname of the child shall be the same as that of the husband, except that upon agreement of the husband and mother, or upon agreement of the mother and father if paternity has been otherwise determined, any surname may be chosen. The name of the putative father shall be entered on the certificate as the father of the child if one of the following conditions exists:
- Paternity has been otherwise determined by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered.
- The child’s mother, mother’s husband and putative father complete an affidavit acknowledging paternity that contains all of the following:
- A sworn statement by the mother consenting to the assertion of paternity by the putative father and declaring that the putative father is the child’s natural father
- A sworn statement by the putative father declaring that he believes he is the natural father of the child
- A sworn statement by the mother’s husband consenting to the assertion of paternity by the putative father
- Information explaining in plain language the effect of signing the affidavit, including a statement of parental rights and responsibilities and an acknowledgment of the receipt of this information
- The Social Security numbers of the putative father, mother and mother’s husband
- The results of a DNA test that has confirmed the paternity of the putative father
- If the mother was unmarried at all times from the date of conception through the date of birth, the name of the father shall not be entered on the certificate unless the child’s mother and father complete an affidavit acknowledging paternity which contains all of the following:
- A sworn statement by the mother consenting to the assertion of paternity by the father and declaring that the father is the child’s natural father and that the mother was unmarried at all times from the date of conception through the date of birth
- A sworn declaration of paternity by the father that he believes he is the natural father of the child
- Information explaining in plain language the effect of signing the affidavit, including a statement of parental rights and responsibilities and an acknowledgment of the receipt of this information
- The Social Security numbers of both parents
Legitimation and paternity are extremely sensitive and important issues for any family. The attorneys at Village Law Group will be happy to assist you through the complex legal process. Contact us at 919-525-2854 today to discover how we can help with your legitimation concerns.