Establishing Paternity in North Carolina

Paternity is the legal process of recognizing a child’s biological father as his legal father. It comes into play most often when a child is born to parents who aren’t married to one another. In those instances, paternity must be established in order to collect child support from the putative (or alleged) father. But fathers often establish paternity for custody purposes too (especially if the mother is married to another man at the time the baby is born). Below are several ways to establish paternity in North Carolina.

Child is born during the marriage: In North Carolina, the husband of a married woman is presumed to be the father of any child born during the marriage. But if the husband isn’t the father, the presumption can be rebutted by clear and convincing evidence in a legitimation or paternity action.

Parents later marry: If an unwed mother marries the putative father (alleged father) of the child after the child is born, paternity will automatically be established—no special proceeding needs to take place.

Affidavit of parentage: As previously mentioned, when a baby is born to a married woman, the law recognizes her husband as the baby’s legal father. North Carolina requires his name on the birth certificate as the father. However, if the mother, putative father, and husband all sign affidavits that meet the conditions set out in N.C.G.S. §130A-101(e)(2), then the hospital can place the putative father’s name on the birth certificate as the baby’s father. If that happens, paternity is established.

If the mother isn’t married at the time the baby is born—and hasn’t been since the date of conception—she and the putative father can sign affidavits stating the putative father is the baby’s father. If they meet all the requirements of N.C.G.S. §130A-101(f), paternity will be established.

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Legitimation: A putative father can file an action to legitimate the child at any time before the putative father’s death. Legitimation actions and paternity actions are not the same thing. Legitimation actions have to do with the child’s rights while paternity actions have to do with the father’s rights. Oddly enough, if you establish paternity, you may still need to legitimate your child but if you legitimate your child then paternity is established at the same time. Read our blog about legitimation to find out more.

Criminal action for non-support: N.C.G.S. §49-2 makes it a misdemeanor for a person to fail to provide adequate support for a child born out of wedlock to them. Paternity must be established in order to convict.

Paternity action: According to N.C.G.S. §49-14, a civil paternity action can be filed any time before the child turns 18 years old. To establish paternity by clear and convincing evidence, the court requires genetic marker testing (a DNA test).

If the putative father dies before the child turns 18, a paternity action must be filed within a year of his death. It can’t be filed after that time period. That being said, if the putative father’s personal representative opens an estate, North Carolina law further restricts the timeframe by requiring the paternity action to be filed within 90 days from the publication of a formal notice to creditors.

Depending on your circumstances, establishing paternity can be complicated. It’s best to talk to a knowledgeable family law attorney to help you understand the process. To find out your rights, contact us for a consultation today.

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