Child Custody with Unmarried Parents

Posted by Jonathan Jerkins | Oct 22, 2021 | 0 Comments

In North Carolina, when a child is born to married parents, the married couple is presumed to be the child's legal parents. What about when the parents are not married?

Simply put, parental rights – including child custody rights – do not depend on whether the parents were married at the time of the child's birth. That said, under the law, if no father is named on the birth certificate, an unmarried mother receives the primary or natural right to custody of the child. Unless the mother is proven to be unfit or has abandoned the child, the mother retains this right to custody.

An unmarried father whose name appears on the birth certificate may enforce custodial rights. If the father's name is not on the birth certificate, the father must first establish paternity before attempting to exercise custodial rights.


The legal process of establishing paternity is called legitimation, and there are two basic methods an unmarried father can do so:

  1. Affidavit of Parentage: This sworn statement, voluntarily signed by the mother and father in front of a witness, establishes the identity of the child's biological father. This process is often completed at the hospital and then filed with the Office of Vital Statistics. These affidavits are difficult to overturn, so if there is any doubt about the father's identity, an affidavit of parentage should not be executed.
  2. Paternity Action: Either the mother or father may initiate a court proceeding to determine the child's paternity any time before the child turns 18 years old. Either party may also request genetic testing. If the putative father's DNA matches the child's by at least 97 percent, the court will name that person as the child's legal and biological father and issue a final paternity order.

Establishing paternity results in each parent having legal rights and responsibilities regarding the child, the details of which may be established by mutual agreement of the parents or by the court in an additional proceeding:

  • Custody or visitation periods
  • Child support
  • Payment of medical and educational expenses
  • Decision-making concerning the child

If you have questions about unmarried parents' custody rights, please contact us at Jerkins Family Law today. We can help you navigate the legal system and do what's best for your child.

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.


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