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What Rights Does a North Carolina Father Have to a Child Born Out of Wedlock?

Posted by Jonathan Jerkins | Oct 23, 2018 | 0 Comments

When a married couple has a child, North Carolina law assumes the mother's husband is the father and gives the child all the rights of legitimacy, including the right to develop a relationship with both parents. However, when an unmarried mother gives birth to a child, the same assumption is not applied in the case of the child's father. Depending on the circumstances, this means the child is not afforded the same rights as a child born to a married couple. It also means you as the father may miss out on the opportunity to be an active part of his child's upbringing.

If you are the father of a child born out of wedlock, North Carolina law gives you a way to establish your paternity and legitimate your child so that you can enjoy all the rights and responsibilities of parenthood.

How do I Legitimate My Child in North Carolina?

North Carolina law does not give a child born out of wedlock the same rights as a legitimate child -- a legitimate child is a child born of married parents. In cases where the father and mother are not married, the mother may choose not to allow you -- the father -- to develop a relationship with your child. In such cases, you have no legal right to be a part of your child's upbringing. If you die without a will, your child has no right to inherit your real or personal property. Both the father and the child suffer.

If you marry the child's mother before the legitimation process begins, your child is automatically considered legitimate and you do not need to take any further legal action. If you do not marry, you must complete the legitimation -- also known as legitimization -- a process as set out in N.C. Gen. Stat. §§ 49-10 - 49-13.

Establishing Paternity in North Carolina

The first step of legitimation is establishing the child's paternity. In North Carolina, listing someone as the father on the child's birth certificate is not valid proof of paternity, so state law provides two ways for a father to establish paternity: (1) affidavit of parentage; and (2) civil action.

1. Affidavit of Parentage

The first way is through an Affidavit of Parentage. Both parents sign this sworn statement in front of witnesses at the hospital when the child is born or later at the health department in your respective county -- for those in Raleigh, that would be Wake County Health & Human Services. This document is filed with the state's Office of Vital Statistics and is legally binding. You should not sign an Affidavit of Parentage unless you are sure that you are the child's biological father.

2. Civil Action

The second way to establish paternity is through a civil action. This process can occur at any time before your child's eighteenth birthday. The court orders a blood or genetic marker test to determine if you are the natural father.

North Carolina Child Legitimation Process

Establishing that you are your child's natural father does not automatically make your child legitimate. You must still go through the legitimation process. Only the child's natural father can file for legitimation, and you can file in the county where either you or your child resides.

Once the court has clear and convincing evidence that you are your child's natural father, the judge declares your child legitimated. Your child now has all the rights as a child born in wedlock. The clerk of superior court will send a certified copy of the legitimation order to the Office of Vital Statistics. Your child will be issued a new birth certificate listing you as the father, and the child's last name will be the same as yours.

Thoughtful, Resourceful Family Law Attorney in Raleigh, NC

If you have any questions about establishing paternity or legitimation, please call Jerkins Family Law for assistance. We are committed to providing passionate representation for you and your family. Contact us today.

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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