Establishing Child Paternity in North Carolina
Paternity determines who is legally recognized as a child’s father, and it isn’t always automatic. Here’s how it’s established under North Carolina law.
What “Paternity” Means
Paternity concerns who is recognized as a child’s legal father, which is not always the same question as who the child’s biological father is. A man who is the alleged biological father of a child born outside of marriage, but whose paternity hasn’t yet been legally established, is generally referred to as the “putative father.”
Children Born to a Married Mother
If the mother was married when the child was conceived or born, North Carolina law presumes her husband is both the biological and legal father, and his name is entered on the child’s birth certificate. If the husband is, in fact, the child’s biological father, no further steps are needed to establish paternity.
Children Born Outside of Marriage
When a child is born to unmarried parents, the putative father’s name can be added to the birth certificate if he and the mother complete an affidavit acknowledging paternity. This voluntary acknowledgment of parentage, or an affidavit completed at the hospital, which carries the same legal effect, functions as a judgment of paternity for child support purposes.
Paternity of a child born outside of marriage can also be established through:
Court Proceedings
- A civil action to establish paternity
- A criminal nonsupport action in which paternity is a prerequisite to conviction
- A special proceeding to legitimate the child
Other Legal Routes
- The subsequent marriage of the mother and the putative father
- A previously completed voluntary acknowledgment or hospital affidavit
Proving Paternity
The most common way to prove paternity is a blood or genetic marker test. These tests are mandatory when a paternity case is brought more than three years after the child’s birth, or after the alleged father’s death. A genetic test result showing at least a 97% probability of a match is enough to meet the “clear, cogent, and convincing evidence” standard North Carolina courts require.
The Effect of Establishing Paternity
Once a court establishes paternity, the father takes on the same duties and obligations toward the child as he would if the child had been born to married parents, including financial responsibility for medical expenses related to the pregnancy and birth. Establishing paternity does not, by itself, legitimize the child, that requires a separate legal proceeding.
A previous paternity order can be reopened and set aside only if the alleged father can show, through genetic testing, that he is not the biological father, and that the original order resulted from fraud, duress, mutual mistake, or excusable neglect. The burden of proof is on the person seeking to set the order aside.
What Changes Once Paternity Is Established
Paternity is the gateway to every other right and duty between a father and a child born outside marriage. Until it exists, an unmarried father has no enforceable right to custody or visitation and the mother has no enforceable right to support. Once it exists:
- Child support can be ordered under the North Carolina Child Support Guidelines, and the court may order retroactive support for up to three years before the action was filed, plus the mother’s medical expenses from the pregnancy and birth. See how child support is calculated.
- Custody and visitation may be sought by the father under the same best-interest standard that applies to married parents. Without a custody order, the mother has sole custody by default. See fathers’ rights in North Carolina.
- The birth certificate is amended to add the father’s name, and the child’s surname may be changed with both parents’ agreement or a court order.
- Health insurance coverage for the child can be ordered as part of support.
- Inheritance from the father is not automatic. A child born outside marriage inherits from the father only if paternity was established by court order during the father’s lifetime or the father acknowledged the child in a notarized writing filed with the clerk, or if the child is legitimated. This is the practical reason legitimation matters beyond paternity.
Voluntary acknowledgment: what you are signing
The Affidavit of Parentage offered at the hospital is a legal document with the effect of a court judgment for support purposes. Either parent may rescind it within 60 days of signing, or before a court order relating to the child is entered, whichever comes first, by filing a rescission with the state registrar. After that it can be challenged only on the grounds of fraud, duress or mutual mistake, and the person challenging it must prove those grounds. A man who is unsure whether he is the father should ask for genetic testing before he signs, not after.
Paternity and legitimation compared
Paternity makes a man the legal father for support and gives him standing to seek custody. Legitimation, under G.S. 49-10, goes further: the child becomes legitimate, inherits from the father as a matter of course, and may take the father’s surname, and the father’s custody rights become equal to the mother’s without a separate custody order. Legitimation is obtained by the father’s petition to the clerk of superior court, and it happens automatically if the parents later marry. Fathers who intend to be fully involved should consider legitimation rather than stopping at paternity. See legitimacy and paternity.
Common Questions
Is my husband automatically the legal father of my child?
Yes, if you were married when the child was conceived or born, your husband is presumed to be both the biological and legal father, and no additional steps are needed if that presumption is accurate.
How is paternity established if the parents aren’t married?
Typically through a voluntary acknowledgment of parentage or hospital affidavit signed by both parents, or through a court proceeding such as a civil paternity action, if the parents don’t agree.
Is there a deadline to establish paternity?
Generally, a civil action to establish paternity must be filed before the child’s 18th birthday. If the alleged father has died, additional deadlines tied to his estate may also apply.
Does establishing paternity automatically legitimize my child?
No. Establishing paternity creates parental rights and responsibilities, but legitimation is a separate legal proceeding.
Can I get a DNA test without going to court?
Yes. Private laboratories offer tests, and the child support enforcement agency will arrange testing at no cost when a support case is opened. Only a court-ordered or agency-arranged test with a documented chain of custody is admissible in court, so an at-home kit may need to be repeated.
What if the mother refuses to cooperate with testing?
A putative father may file a civil paternity action, and the court will order the mother and child to submit to genetic testing. Refusal to comply can result in the court resolving the question against the refusing party.
I signed the affidavit and later learned I am not the father. What can I do?
Within 60 days you may rescind the affidavit by filing with the state registrar. After that, you must file a motion to set it aside and prove fraud, duress or mutual mistake, and the court will order genetic testing. Support that accrued before the order is set aside is generally not refunded, which is why testing before signing matters.
Can paternity be established after the father dies?
Yes, but the deadlines are short and genetic testing is mandatory. An action may be brought within one year of the death or within the period for filing claims against the estate, and paternity is often established for inheritance or Social Security survivor benefit purposes.
Does the father’s name on the birth certificate prove paternity?
For a child born to unmarried parents, the father’s name appears only after an Affidavit of Parentage or court order, so it reflects paternity that has already been established. For a child born to a married mother, the husband’s name reflects the marital presumption, which can be rebutted by genetic evidence.
Need Help Establishing Paternity?
Whether you’re seeking to establish paternity or respond to a paternity claim, our family law attorneys can guide you through the process and protect your rights.