There are some fundamental differences in the way that unmarried parents and married parents are treated in North Dakota. Unmarried parents need to understand and plan for these differences so they protect their own rights and the rights of their children.
Children who are born to married couples in North Dakota are deemed to be the legal and biological children of their parents. But children who are born to unmarried couples are not. Instead, it’s as though these kids have no biological or legal father. North Dakota law specifically says that “a child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” But there can still be major complications for children of unmarried parents. For instance, if their mother dies an untimely death, there may be a legal battle over whether children can live with a biological father.
Establishing paternity refers to the legal process for making sure that a baby’s biological father becomes the legal father, too. Establishing paternity gives children of unmarried couples equal footing under North Dakota Law. However, unmarried North Dakota couples have to take extra legal measures, above and beyond what married couples do, to make sure that their child’s paternity is established.
How to Establish Paternity in North Dakota
Other than marriage, there are two basic methods that unmarried North Dakota parents commonly take to establish paternity: the parents can sign an "Acknowledgement of Paternity" form (AOP), or the question of the baby’s paternity can be adjudicated (decided) by a judge after someone files a paternity lawsuit.
Signing an Acknowledgement of Paternity
Signing the AOP is a simple and totally voluntary process. But if you have any doubts about whether a child is yours, don’t sign the AOP because once it’s signed, it’s a legally binding document that’s very hard to overturn. Instead, pursue your right to genetic testing so you can find out if there’s a DNA link between you and the child.
Unmarried couples frequently choose to sign the AOP at the hospital or birthing center. The hospital has the necessary forms and staff available to assist you with the paperwork. Hospital staff have special training in AOPs and can answer some of your questions. The hospital will also make sure the AOP gets to Vital Statistics for filing.
It’s important to know that you don’t have to sign the AOP at the hospital if you have reservations or you don’t feel ready. You can sign later if that’s what you want—if you don’t sign at the hospital, you can sign later at your local Vital Records or Child Support office.
By signing the AOP, the parents are agreeing that the alleged father is the biological and legal father of the baby and they are waiving (giving up) their rights to genetic testing, representation by a lawyer, or a trial about the baby’s parentage.
They also agree that the father may have to pay child support and provide health insurance, and that the child has the right to inherit from the father. The AOP doesn’t give anyone custody or visitation, but it does give the father the right to ask for visitation and even custody. However, the parents have to work these issues out themselves, and if they can’t, they have to go to court and ask a judge to make the decision for them. Finally, they agree that the father’s name should be added to the birth certificate.
Filing a Paternity Lawsuit
The second way to establish paternity is through the judicial process. A paternity lawsuit can be brought to district court by either of the parents or by a government lawyer for Child Support Enforcement (CSE), which usually gets involved because the mother or child is receiving financial assistance through the State of North Dakota. The mother and the alleged father have to be named in the lawsuit. CSE is interested in paternity cases because its mission is to make sure that biological parents are providing financial support for their children, but courts can’t order child support unless and until paternity is established.
If anyone requests genetic testing, the court will order it and everyone must submit to testing. Failure to do so could be a contempt of court, punishable by jail time or fines.
If the parties end up at trial, without having had genetic testing completed, the judge will order it and then decide whether the alleged father is the baby’s legal and biological father. If the judge determines that the alleged father is the baby's father, then the court will issue a final paternity order, which means that paternity has been formally established.
The court can also enter an order assessing financial obligations (child and medical support) and make decisions about custody, visitation, and residency (where the child will live). The judge will make these decisions based on what's in the child’s best interests.
What are the Benefits of Establishing Paternity?
There are a number of reasons why parents may want to establish paternity of their child, regardless of whether they live together or have a loving relationship:
- If the father and mother live together, child support is unlikely to be an issue. But if they don’t, the father and mother may have financial obligations to pay child support, maintain health insurance, and pay medical expenses and educational costs. They can help each other financially.
- The parents can work together to make decisions that are best for their child.
- Either parent can go to court and ask for a judge to order a custody and visitation schedule.
- By exposing children to both parents and both sides of the family, parents bond more closely with their children from a young age and give them a feeling of inclusion and connectedness.
Children also enjoy a wide variety of benefits when paternity is established:
- Your child’s birth certificate will include both parents’ names.
- Your child is guaranteed the ability to access medical histories from both sides of the family.
- A child with a legal father can qualify, through the father, for benefits like Social Security, medical insurance, and other state, federal, and inheritance benefits.
If you have specific questions about paternity in North Dakota, you should speak with an experienced family law attorney in your area.
If you’d like to see what a North Dakota AOP looks like, click here. Note: the document is a watermarked PDF that isn’t intended for official use. It should only be used as a sample that you can read to familiarize yourself with the contents.
The North Dakota Department of Human Services, CSE Division, has prepared official materials about establishing paternity. This page explains the services offered by CSE, while this page is a comprehensive FAQ about the acknowledgement of paternity process.