Paternity

Synopsis: This article explains how paternity can be established, either by completion of the appropriate forms or by court order.

Being a parent comes with important rights and obligations. Unless and until a man is found to be the father of a child, that man has neither the right nor the ability to make decisions regarding the child. The mother has no right to ask a man who is not her husband or who has not either admitted to paternity or been adjudged the father by a court to support or care for the child in any way.

If a man is married to a woman who gives birth to a child who was either born or conceived while the couple was married to each other (even if they were separated or the father can show that he was not in the same place as the mother during the time the child was possibly conceived) he is legally presumed to be the father of the child. This presumption is a rebuttable presumption. Either the husband or the wife can file an action and proceed to court to have the husband declared not to be father of the child. This action is possible even if, for example, the husband does not learn that the paternity of the child is in question until many years later. In such cases, both the mother and the putative father need to weigh the options carefully.

For the man who learns that he may not be the father of his child after acting as the child’s father for many years, his natural reaction of hurt and anger may cause him to proceed to court to be declared not to be the father. But, such an action would cut off not just the obligation to support or care for the child, but all rights to parent the child any more than a stranger. A father is more than a donor of genetic material. Reacting to an emotional hurt in a way that will keep him from a child he has loved and cared for may not be what the man really wants. This result could have a huge effect on the family, especially if there are other children whose paternity is not in question. It can, also, have a huge effect on the child, who is certainly innocent of any wrong doing and may have a strong bond of love towards the father.

Similarly, if the mother has withheld the possible paternity issue from her Husband and uses that issue during a divorce or custody action, it may not have the intended effect. In the case of a couple who had never married but had lived together for many years and the mother had led the man to believe he was the father of her child. The man had loved and cared for the child for years. In fact, there had been times when the mother left the child solely in control of the man while she went off. When the couple split up, the mother tried to cut off all of the rights of the man who thought he was the father. The court acknowledged the fact that the man was not the biological father of the child but allowed him a continued right to custody.

The last person who could wish to press the right to be declared the parent to a child of a marriage, is the man alleging that he is, in fact, the father of the child. While it is possible in some situations, such as where the husband has been absent from the home during the period of possible conception, for a man to know that the child is not the child of the Husband, there are many situations where the husband and the other man could both have fathered the child. In this situation, the man alleging that he is the father needs to weigh his options carefully. It is natural and understandable for him to want to know if he has a child and to want to be a part of the child’s life. But if it is found that he is not the father, his actions may cause irrevocable harm to the marriage or to the father/child relationship. Or, if he is found to be the father, he may have to share that role with the Husband who is already in the child’s life.

Once a father is legally recognized then, as between the mother and the father, the court will find both parents have equal rights to the care and custody and equal obligations to support their child. Neither parent, regardless of the child’s tender years, has a superior right to the other parent. As between either parent and the rest of the world, a parent has superior rights to the custody of the parent’s child.

There are basically three different ways for paternity to be established outside of a marriage:

1. The father can voluntarily admit paternity and can have his name placed on the child’s birth certificate, should the parties so agree. In order to admit paternity at birth or later, the mother and father both need to execute an AOC-CV-604, “Affidavit of Paternity.”  On the front of the form is the “Father’s Acknowledgment of Paternity” and on the reverse side the “Mother’s Affidavit of Paternity”. If the mother refuses to execute the affidavit of paternity, the form cannot be used and it will be necessary to file a court action. At such time as the affidavit of paternity is signed, the legal rights and obligations of a parent begin, including the right to custody or visitation and the obligation to pay support.

There are times when a man executes the affidavit of paternity and then later has reason to believe that he is not the father of the child. In such cases, the man can bring a motion to have the paternity of the child judicially determined.  AOC-CV-670, “Motion And Notice Of Hearing To Set Aside Order Of Paternity/Affidavit Of Parentage.”

Executing the Affidavit of Paternity gives the father the right to ask for custody or visitation but, if the parents are unwilling or unable to agree to a custodial arrangement, then it will be necessary to bring an action for child custody in court.

2. If there is no agreement as to paternity, but the mother proceeds to court for an action for child support, the alleged father has the option of either admitting paternity at that time or asking for a medically approved test to determine paternity. [see NCGS §49-7] If the mother is receiving public assistance, the local child support enforcement office may subpoena the parties to appear for the purpose of blood or genetic testing to establish paternity. Such tests are minimally invasive and usually require a swab of the inside of the cheek of the alleged father, the baby, and the mother. If such a test is not available, the alternative is a test of blood markers which requires a small amount of blood to be drawn from all three parties. Blood tests, while accurate, may give a false reading before the child reaches the age of 6 months. Also, it is common for an initial test to be done which will exclude the alleged father from paternity but is not detailed enough to declare that he is the father. If the man is not excluded, a further blood test will be required to determine the probability that he is the father. Blood tests are more expensive and more invasive than the DNA (cheek swab) tests now done by most jurisdictions. If the father does not appear at the hearing after being served and having notice, the court can enter an order which is rebuttable should the Defendant ever show up at a hearing and dispute paternity.

3. The last method by which paternity can be established is by filing an action to determine paternity. Either the mother or the putative father can file an action for paternity. While not required in order to prove paternity, either party can make a motion for the other party and the child to participate in a medically approved test to determine paternity. By statute, a medical determination of the probability of paternity of 97% or greater is prima facie evidence of paternity.

Once paternity is established, the court can determine the custodial time with each parent, and how much support the non-custodial parent should pay. However, a finding of paternity provides the court with the basis to make such decisions, the parties will have to file an action for custody or support for the court to be able to make such a judgment. Usually, an action for custody and support will be filed at the same time as an action of paternity but will be determined only after the issue of paternity has been decided. If the mother of a child is receiving any public assistance, the mother is required by law to identify the man whom she believes to be the father.

In addition to civil actions to determine paternity, there are two additional ways that a child’s paternity can be established. 1) A criminal action for non-support of a child in which there is no establishment of paternity will first have to determine whether paternity exists before reaching the issue of criminal non-support (see NCGS §49.2 et. Seq). 2) A putative father can file a petition as a special proceeding to have a child legitimated. In a legitimation case, the mother cannot bring the action, only the putative father may do so. An action for legitimacy takes priority over an action for paternity or custody on the theory that legitimation vests greater rights in the child than the establishment of paternity would do. Specifically, legitimation allows a child to inherit through the father and collateral relations as if and to the same extent as a child born in wedlock. Although it is unusual, the legitimation statute uses the term “reputed father” rather than “putative father” and has held that reputed means “considered or generally, supposed, or accepted by public opinion.” Bowman v. Howard, 182 NC 662, 110SE 98 (1921). In fact the court has held, the use of the word “reputed” rather than “putative” in this section was intended merely to dispense with the absolute proof of paternity so that, if a child is “regarded”, “deemed”, “considered”, or “held in thought” by the parents themselves as their child, either before or after marriage, it is legitimate. (see Carter v. Carter 232 NC 614 (1950) and Chambers v. Chambers, 43 NC App 361 (1979))