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NC Child Custody Laws for Unmarried Parents
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The Basics of Paternity
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The action may be initiated by the father, the mother, the child, or a personal representative of the mother or child. A county department or child support services agency may also initiate a paternity action if the child or the mother, because of her medical expenses, is likely to become a public charge.
Although a child may initiate a paternity action, a child is not a necessary party when the action is initiated by a different party. Unlike a legitimation proceeding, a paternity action may be commenced after the death of the putative father, so long as it is initiated within one year of the date of the death if an administration of the estate proceeding had not been commenced within that year, or if an estate proceeding was commenced within that year, within the time period set forth in G. City of Clinton , N. Paternity must be proved by clear, cogent, and convincing evidence.
In North Carolina, there is a common law presumption that a husband is the father of a child born to or conceived by his wife during their marriage. Eubanks v. Eubanks , N. B yerly v. Tolbert , N. The marital presumption of legitimacy may be rebutted by clear and convincing evidence. In re Papathanassiou, N. No court action is required.
Batcheldor v. Boyd , N. A child may be legitimated through a special proceeding in the superior court. The clerk of superior court presides over the legitimation proceeding unless the action is transferred to superior court because there is an issue of fact, request for equitable relief, or equitable defense. The putative father must name the mother if living and child as necessary parties. In that case, the husband is also a necessary party. The court does not apply a best interests of the child analysis.
When a legitimation proceeding is brought pursuant to G. Neither the statute nor case law addresses the required burden of proof. The civil standard of preponderance of the evidence or the higher standard used to rebut the marital presumption or establish paternity —clear, cogent, and convincing evidence—may apply.
There is a lot more to say about paternity and legitimation, especially when looking at other types of court actions and executed affidavits of parentage. Toggle navigation On the Civil Side.
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