Becoming a father is a really big deal in a man’s life. You have contributed to the creation of a life—a person who shares your genetics, who has some of your physical looks and features, and who needs a father. It is therefore critical to understand how the law treats “paternity”, or a man’s status as a child’s father.
If a child’s father and mother are married at the time of the child’s birth, then there is a legal presumption that the husband is the child’s father and no further steps need to be taken to establish paternity of the child. The same is true if a mother and father get married after a child is born, which retroactively creates the presumption that the man is the father. However, if a father and mother are unmarried at the time of the child’s birth and do not subsequently get married, there are steps that must be taken to establish a man’s paternity of a child.
There is a difference under North Carolina law, however, between “paternity” and “legitimation.” Children born out of wedlock do not have the same rights and privileges of children born to a married couple. A legitimation petition is about the status of the child, whereas a paternity action addresses the status of the father as a biological parent. A legitimation action can only be brought by the child’s father.
Voluntary Acknowledgement of Paternity
If a father and mother are unmarried at the time of a child’s birth, one method of a man establishing paternity of a child is to acknowledge paternity through an “affidavit of parentage”. As an affidavit, both the mother and father are legally swearing that the man is the father of the child. The affidavit is a legally binding document that establishes the man’s paternity and obligates the state to list the father on the child’s birth certificate, but it must be consented to by both parents. Without this agreement, a civil action would need to be brought to establish paternity.
Why Should a Man Acknowledge Paternity?
An affidavit of parentage creates a legal relationship between an unmarried father and his child. Without this acknowledgement—or a judicial finding based on genetic testing—a man is not the child’s father in the eyes of the law. The purpose of a paternity proceeding is to establish the identity of the biological father so that the child’s right to support can be enforced. Paternity serves to equalize the rights of the mother and father as to the rights, duties and obligations with regard to support and custody of the child.
In contrast, only a legitimation proceeding can grant a child the full range of legal rights that a child born to married parents has. The child would then be entitled to inherit from his or her mother intestate (or, without a will). Legitimation serves to impose upon the father and mother all of the lawful parental privileges and rights, as well as the obligations that parents owe with regard to support and custody of the child.
Contact New Direction Family Law
New Direction Family Law is a law firm that represents men and women seeking a resolution to a child custody issue or an issue relating to the end of a marriage. Our attorneys take a thoughtful, methodical approach to serving our clients’ interests and take pride in offering high quality representation. Our firm serves Wake, Johnston, Durham, and surrounding counties. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation or visit us at our website.
Sarah J. Hink
New Direction Family Law