In North Carolina child custody cases, the law treats married mothers and fathers equally when it comes to custody and parenting time. This is because there is a presumption that if parents are married at the time of conception or prior to the child’s birth, that the man is the child’s legal father. However, when it comes to unmarried parents, the matter becomes more complicated.
Unmarried But Together
Couples are increasingly bucking the tradition of getting married before having children. In fact, some couples feel like a commitment to each other is enough and choose to forgo marriage entirely. With this decision, however, may come unforeseen legal challenges.
Even if an unmarried couple is together, a child’s biological father is not automatically the child’s legal father. The father and mother must execute an affidavit in order for the father to appear on the child’s birth certificate and thereby be recognized as the child’s father. Otherwise, the biological father does not have legal custody to the child, nor does the child have an automatic right to inherit from the father should the father die intestate—or without a will.
Further, there is a potential consequence if the couple does not take the step of putting the biological father on the child’s birth certificate, and if the mother should unexpectedly pass away. In this scenario, while the father will ultimately retain care and custody of the children, this is not automatic since paternity has not yet been determined by the court, or as a matter of law.
There is also the legal concept of legitimization by marriage. So if the parents of the child become married following the birth of the child, the father’s paternity can be established by “legitimation”.
Unmarried and Not Together
When parents are unmarried and not together, the law treats the parents very differently than married parents. In this scenario, the mother has all legal rights to the child and the father has none. This is until proper steps are taken to establish the father’s paternity. This means that the father does not have any visitation or access rights, unless the mother consents. However, once paternity is established, the courts will look at the best interest of the child to determine a schedule of visitation and access, as well as child support orders.
Contact New Direction Family Law
New Direction Family Law is a family law firm that represents clients in matters of separation, divorce, property division, alimony, and child custody. With twenty years of combined legal experience, our attorneys will provide you with relevant, accurate legal advice. If you are in need of legal advice or representation regarding a family law matter, contact us. We proudly serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law today at (919) 719-3470 or visit us online at our website.
Sarah J. Hink
New Direction Family Law