North Carolina’s law says that when a married couple has a baby, both parents are automatically viewed as being the legal parents of their child. That gives them all the rights and responsibilities of parenthood. But the law is different for unmarried couples. When unmarried couples have a baby, the parent-child relationship isn’t automatically recognized. This means that some parents will miss out on important benefits and obligations of the parent-child relationship unless some further action is taken. For example, a child’s right to inherit property could be compromised.
Establishing paternity refers to the legal process (which is also called “legitimation”) for making sure that the baby’s biological father becomes the legal father, too. Unmarried North Carolina couples have to take extra legal measures, above and beyond what married couples do, to make sure that their child’s paternity is established.
If you have specific questions about paternity, you should contact an experienced family law attorney in your area.
In North Carolina, there are four basic methods to establish paternity. The first has already been discussed—the father and mother have married at the time of conception or before the child’s birth, which results in automatic paternity.
The second method also pertains to marriage—the father and mother can marry after the baby is born. When that happens, their baby is legitimated “retroactively,” meaning going all the way back to birth. It’s best to discuss this option with an attorney first.
There are two more methods that unmarried North Carolina couples with a baby commonly take to establish paternity: the parents can sign an "Affidavit of Parentage," or the question of the baby’s paternity can be adjudicated (decided) by a judge after someone files a paternity lawsuit.
Signing the affidavit is a simple and totally voluntary process. (By contrast, going to court is an involuntary process because everyone is bound by the judge’s decision and there’s no element of choice.) If you have any doubts about paternity, don’t sign the affidavit because once it’s signed, it’s a legally binding document that’s very hard to overturn. Instead, pursue your right to genetic testing (this is ordinarily done by a cheek swab) first, so you can find out if there’s a DNA link between you and the child.
Unmarried couples frequently choose to sign the affidavit at the hospital or birthing center. An affidavit is a sworn statement, so the mother and father will have to sign it in the presence of official witnesses. The hospital has the necessary forms and staff available to assist you with the paperwork and also to act as witnesses for your signature. The hospital will also make sure the affidavit gets to Vital Statistics for filing. It’s important to know that you don’t have to sign the affidavit at the hospital if you have reservations or you don’t feel ready. You can sign later if that’s what you want, but know that wherever and whenever you wind up signing, both parents will have to sign in the presence of a notary public (official licensed with the State of North Carolina to witness official signatures), which may require a small fee. If you don’t sign at the hospital, you can sign later at your local Vital Records or Child Support office.
By signing the affidavit, the parents are agreeing that the father is the biological and legal father of the baby. They also agree that the father may have to pay child support and that the child has the right to inherit from the father. Custody rights stay with the mother. But by signing the affidavit, the father earns the right to go to court and ask for a new custody and visitation schedule. Finally, they agree that the father’s name should be added to the birth certificate.
The second way to establish paternity is through the judicial process. A paternity action (known as a “complaint”) can be brought to superior court by either of the parents or by a government lawyer for Child Support Services (CSS), which usually gets involved because the mother or child is received financial assistance through the State of North Carolina. CSS 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.
The parties can settle the case at any time or they can go to trial. If they go to trial, the judge will decide whether the alleged father is the baby’s legal and biological father.
If anyone requests genetic testing, the court will order it and everyone must submit to testing.The judge will order genetic testing. If the testing shows at least a 97% probability that the alleged father is the biological father, then the court will establish paternity. The judge 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 a decision about custody, visitation, and residency (where the child will live).
There are a number of reasons why parents should establish paternity of their child, regardless of whether they live together or have a loving relationship:
The North Carolina Department of Health and Human Services, Division of Social Services (DSS), has published an official topic sheet on paternity, as well as FAQs for custodial and non-custodial parents who have questions about paternity. DSS has also published a handbook on child support which contains a helpful chapter on paternity issues.
The Department of Health and Human Services also hosts a child support services page devoted to the subject of voluntary methods of establishing paternity.
Finally, here is a section of the North Carolina General Statutes which contains many of the applicable paternity laws.