All children deserve the right to a legal father recognized under North Carolina family law. When a couple is married, the child born, or conceived, during the marriage, the husband is presumed to be the legal and biological father. This law even extends to circumstances when the married parents were separated at the time of conception or birth. The husband’s name will then be listed on the birth certificate once the child is born. Establishing paternity becomes more complicated if the child was conceived and born outside of wedlock. In order to protect the biological father’s rights and ensure rights of the child, it is important to legally identify the paternity of the child.
A “putative father” is the term for a man who is alleged to be the father of a child, but the relationship between the child and putative father has not been established.
In North Carolina, paternity can be established before the child turns 18 years of age. There are 3 ways to establish paternity in North Carolina, (i) the biological parents get married after the child is born, (ii) Affidavit of Parentage, (iii) Paternity Action.
Under North Carolina law, when the putative father and mother marry after the birth of the child, the putative father retroactively becomes the legal father of the child through the finalization of the marriage. This does not require any further action from the putative father to establish paternity.
Another preferable method to establish paternity is when both the putative father and mother sign the affidavit of parentage, which established the putative father as the legal father. Often this is performed at the hospital upon the birth of the child. The affidavit is signed under the penalty of perjury and advises they are both the biological parents of a child. Once the affidavit is signed, then the putative father’s name I placed on the birth certificate of the child.
When the putative father signs the Affidavit of Parentage, he agrees to waive any rights to genetic testing to prove whether the child is his biological child. If the putative father is not absolute about being the father of the child, then genetic testing should be arranged. It is extremely complicated to attempt to revoke an Affidavit of Parentage. The reasoning behind this is to ensure the child will have a father.
A paternity action is generally a last resort for the establishment of paternity because it involves filing an action with the court and can become costly over time. A paternity action can be filed by either the putative father attempting to establish his is the biological and legal father of the child, or it can be filed by the mother seeking to place parental responsibility on the putative father.
To begin a paternity action, a petition is filed with the court detailing why the party believes the putative father is the father of the child. This petition will need to be served on the non-filing party by a process server. Once the party has been served with the petition, a response will be filed to the petition either agreeing to the paternity or contesting the allegations contained in the petition. If the paternity is agreed to by the parties, then the court will establish the paternity of the child through court order. It is important to note that a paternity action must be commenced prior to the child’s eighteenth birthday.
If paternity is contested, then the court will require the putative father under DNA testing to confirm the paternity. However, the cost of the DNA testing may be passed to the party contesting the paternity and requiring the DNA test. If DNA testing results confirms the father-child relationship, then the court will enter an order establishing paternity and may order child support.
In addition to the mother and putative father having standing to file suit, the child support enforcement agency may also bring a paternity action against a putative father. This action is done for the purpose of establishing the paternity of the child and ensuring the child is provided for financially by the father.
Once paternity has been established, the child, mother and father all receive benefits because it establishes the relationships. This will ensure both the parents’ and the child’s rights are protected. Some of the examples the establishment of paternity benefits all parties is as follows:
Disestablishment of paternity is highly unfavorable in North Carolina because it risks leaving a child without a father. These actions are often seen if the mother was married to a man when the child was conceived or born, and the husband is not the biological father of the child. Since North Carolina law presumes the husband is the biological father of the child, the husband’s name is automatically listed on the child’s birth certificate. If the husband would like to disestablish himself as the legal father, then he must file a petition with the court. The court will then proceed by ordering DNA testing to establish the allegations of the disestablishment petition. By disestablishing paternity, the father is eliminating all responsibility to the child and giving up all parental rights.
Since establishing paternity can become a complicated process, it is important to hire an experienced North Carolina family law attorney to represent your interest and assist you in filing the correct documents with the court. If you have any questions about establishing paternity, please call us at (336) 272-4299. When you choose to work with one of our knowledgeable family law attorneys, you are receiving a skilled, experienced and effective advocate.