North Carolina Paternity Law


Paternity – General – North Carolina

Note:  This summary is not intended to be an all inclusive discussion of the law applicable to an action to establish Paternity in the State of North Carolina, but does include basic and other provisions.


What is an action for “Paternity for Parentage”? An action filed as a paternity case is to establish whether a person is or is not a natural parent of a child and, if parentage is established, to determine how the child will be parented and who should help pay for the support of the child.

When may an action for Paternity be brought in North Carolina? In North Carolina, an action to establish paternity may be brought in North Carolina whether such child shall have been begotten or shall have been born within or without the State of North Carolina, provided that the child is a bona fide resident of North Carolina at the time the action is filed.

Where may an action for Paternity be filed in the State of North Carolina? An action brought under the North Carolina Statutes in the county in which the child resides, the mother resides, or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

Who may bring an action or parentage? A child, or guardian ad litem of the child, the child’s natural mother, whether married or unmarried at the time the child was conceived, or her personal representative or parent if the mother has died; or a man alleged or alleging himself to be the natural father, or his personal representative or parent if the father has died; or a presumed father as defined in the Act, or his personal representative or parent if the presumed father has died; or the child support enforcement agency, may bring an action for the purpose of declaring the existence or nonexistence of the parent and child relationship.

Are there time limits to the filing of an action to establish parentage? The paternity of a child born out of wedlock may be established at any time prior to such child’s eighteenth birthday.

No such action shall be commenced nor judgment entered after the death of the putative father, unless the action is commenced either:

(1)  Prior to the death of the putative father;

(2)  Within one year after the date of death of the putative father, if a proceeding for administration of the estate of the putative father has not been commenced within one year of his death; or

(3)  Within the period specified in G.S. 28A-19-3(a) for presentation of claims against an estate, if a proceeding for administration of the estate of the putative father has been commenced within one year of his death.

What are the jurisdictional prerequisites to filing an action for parentage in the North Carolina courts? The jurisdiction of the North Carolina courts in paternity matters is very broad.  Basically, A person who resides in the State of North Carolina, or has sexual intercourse in the State of North Carolina, thereby submits to the jurisdiction of the courts of the State of North Carolina as to an action for paternity brought under this chapter with respect to a child who may have been conceived by that act of intercourse.

Will the parties be required to submit to genetic testing? The court may, and upon request of a party, usually will require the child, mother, and alleged father to submit to genetic marker tests, including blood tests.

Who performs the genetic tests? The laboratory performing the testing shall be one approved by the Court.

If a man is determined to be the father of the child(ren), is he obligated to support the child? He would then have the same duty to support the minor child as he would and child he fathered where the issue of parentage was not raised.

If an action to determine parentage is filed and it is determined that a certain individual is the father of the minor child(ren) and that determination contradicts the child’s birth certificate will the birth certificate be changed? Yes, upon the order of a court in North Carolina, a new birth certificate will be issued reflecting the father as established in the court order.

Can this procedure be used to establish the mother – child relationship? Yes, any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship.

Procedures:

The process for determining parentage in the State of North Carolina begins with the filing of the Complaint.  The Defendant is then served with a copy of the Complaint and a Summons.

Once the Defendant has been served, it is necessary to determine whether the parties can agree to paternity, or at the very least, genetic testing.  If the parties are in agreement as to Paternity and execute the Compromise Agreement, the Court Clerk should be contacted and a hearing requested.

If genetic testing is necessary, the parties may agree and jointly request an Order from the Court.  Or, either party may file a Motion for Genetic Testing based upon an Affidavit in Support of the Motion.

In the majority of cases, once the results of the genetic testing is submitted to the Court, the parties will either be in position to settle by agreement or dismiss the action by agreement.


LAW SUMMARY


North Carolina General Statutes
Chapter 49 Bastardy
[sections 1-9 omitted]

§ 49-10. Legitimation. (1977)
The putative father of any child born out of wedlock, whether such father resides in North Carolina or not, may apply by a verified written petition, filed in a special proceeding in the superior court of the county in which the putative father resides or in the superior court of the county in which the child resides, praying that such child be declared legitimate. The mother, if living, and the child shall be necessary parties to the proceeding, and the full names of the father, mother and the child shall be set out in the petition. A certified copy of a certificate of birth of the child shall be attached to the petition. If it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated; and the full names of the father, mother and the child shall be set out in the court order decreeing legitimation of the child. The clerk of the court shall record the order in the record of orders and decrees and it shall be cross-indexed under the name of the father as plaintiff or petitioner on the plaintiff’s side of the cross-index, and under the name of the mother, and the child as defendants or respondents on the defendants’ side of the cross-index.

§ 49-11. Effects of legitimation. (1963)
The effect of legitimation under G.S. 49-10 shall be to impose upon the father and mother all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue, and to the same extent as if said child had been born in wedlock, and to entitle such child by succession, inheritance or distribution, to take real and personal property by, through, and from his or her father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock.

§ 49-12. Legitimation by subsequent marriage. (1959)
When the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock.

§ 49-12.1. Legitimation when mother married. (1998)

(a) The putative father of a child born to a mother who is married to another man may file a special proceeding to legitimate the child. The procedures shall be the same as those specified by G.S. 49-10, except that the spouse of the mother of the child shall be a necessary party to the proceeding and shall be properly served. A guardian ad litem shall be appointed to represent the child if the child is a minor.

(b) The presumption of legitimacy can be overcome by clear and convincing evidence.

(c) The parties may enter a consent order with the approval of the clerk of superior court. The order entered by the clerk shall find the facts and declare the proper person the father of the child and may change the surname of the child.

(d) The effect of legitimation under this section shall be the same as provided by G.S. 49-11.

(e) A certified copy of the order of legitimation under this section shall be sent by the clerk of superior court under his official seal to the State Registrar of Vital Statistics who shall make a new birth certificate bearing the full name of the father of the child and, if ordered by the clerk, changing the surname of the child.

§ 49-13. New birth certificate on legitimation. (1955)
A certified copy of the order of legitimation when issued under the provisions of G.S. 49-10 shall be sent by the clerk of the superior court under his official seal to the State Registrar of Vital Statistics who shall then make the new birth certificate bearing the full name of the father, and change the surname of the child so that it will be the same as the surname of the father.

When a child is legitimated under the provisions of G.S. 49-12, the State Registrar of Vital Statistics shall make a new birth certificate bearing the full name of the father upon presentation of a certified copy of the certificate of marriage of the father and mother and change the surname of the child so that it will be the same as the surname of the father.

§ 49-13.1. Effect of legitimation on adoption consent. (2004)
Repealed.

§ 49-14. Civil action to establish paternity. (2005)

(a) The paternity of a child born out of wedlock may be established by civil action at any time prior to such child’s eighteenth birthday. A copy of a certificate of birth of the child shall be attached to the complaint. The establishment of paternity shall not have the effect of legitimation. The social security numbers, if known, of the minor child’s parents shall be placed in the record of the proceeding.

(b) Proof of paternity pursuant to this section shall be by clear, cogent, and convincing evidence.

(c) No such action shall be commenced nor judgment entered after the death of the putative father, unless the action is commenced either:

(1) Prior to the death of the putative father;

(2) Within one year after the date of death of the putative father, if a proceeding for administration of the estate of the putative father has not been commenced within one year of his death; or

(3) Within the period specified in G.S. 28A-19-3(a) for presentation of claims against an estate, if a proceeding for administration of the estate of the putative father has been commenced within one year of his death.

Any judgment under this subsection establishing a decedent to be the father of a child shall be entered nunc pro tunc to the day preceding the date of death of the father.

(d) If the action to establish paternity is brought more than three years after birth of a child or is brought after the death of the putative father, paternity shall not be established in a contested case without evidence from a blood or genetic marker test.

(e) Either party to an action to establish paternity may request that the case be tried at the first session of the court after the case is docketed, but the presiding judge, in his discretion, may first try any pending case in which the rights of the parties or the public demand it.

(f) When a determination of paternity is pending in a IV-D case, the court shall enter a temporary order for child support upon motion and showing of clear, cogent, and convincing evidence of paternity. For purposes of this subsection, the results of blood or genetic tests shall constitute clear, cogent, and convincing evidence of paternity if the tests show that the probability of the alleged parent’s parentage is ninety-seven percent (97%) or higher. If paternity is not thereafter established, then the putative father shall be reimbursed the full amount of temporary support paid under the order.

(g) Invoices for services rendered for pregnancy, childbirth, and blood or genetic testing are admissible as evidence without requiring third party foundation testimony and shall constitute prima facie evidence of the amounts incurred for the services or for testing on behalf of the child.

§ 49-15. Custody and support of illegitimate children when paternity established. (1967)
Upon and after the establishment of paternity of an illegitimate child pursuant to G.S. 49-14, the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother. When paternity has been established, the father becomes responsible for medical expenses incident to the pregnancy and the birth of the child.

§ 49-16. Parties to proceeding. (1975)
Proceedings under this Article may be brought by:

(1) The mother, the father, the child, or the personal representative of the mother or the child.

(2) When the child, or the mother in case of medical expenses, is likely to become a public charge, the director of social services or such person as by law performs the duties of such official.

a. In the county where the mother resides or is found,

b. In the county where the putative father resides or is found, or

c. In the county where the child resides or is found.

§ 49-17. Jurisdiction over nonresident or nonpresent persons. (1979)

(a) The act of sexual intercourse within this State constitutes sufficient minimum contact with this forum for purposes of subjecting the person or persons participating therein to the jurisdiction of the courts of this State for actions brought under this Article for paternity and support of any child who may have been conceived as a result of such act.

(b) The jurisdictional basis in subsection (a) of this section shall be construed in addition to, and not in lieu of, any basis or bases for jurisdiction within G.S. 1-75.4.