A child born out of wedlock in North Carolina may be legitimated in two ways: by the subsequent marriage of the parents, or by petition. When the mother and putative father of an illegitimate child marry, the child is automatically legitimized. Alternatively, N.C.G.S. § 49-10 provides that the putative father of any child born out of wedlock may apply by a verified written petition praying that such child be declared legitimate. Upon receipt of a marriage certificate or order of legitimation, NC statute dictates that the State Register of Vital Statistics shall make a 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.
The impact of legitimation goes way beyond the amendment of the child's birth certificate. The process imposes on the father and mother of the legitimated child 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. By way of example, N.C.G.S. § 49-10 reads in part that a legitimated child shall be entitled 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. Further, in case of death and intestacy (dying without a Will), 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.
Note: in North Carolina, a child support order cannot be established for a child born out of wedlock unless the alleged father acknowledges paternity or is proven to be the father through genetic testing.
If a civil action to establish paternity is brought more than three years after the child's birth or is brought after the putative father's death, paternity may NOT be established in a contested case without evidence from a blood or genetic marker test. Genetic paternity testing may either prove that the putative father is NOT the child's biological father or establish the putative father's paternity based on a statistical probability that he is the child's biological father.
Genetic testing may be ordered by a court in the trial of any civil action in which the question of parentage arises, when the issue of paternity has not been litigated or judicially determined, and when the putative father has never formally acknowledged paternity by executing an affidavit of parentage in a sworn affidavit. The party who requests the genetic testing is generally required to pay the cost of the testing.
To speak with one of our Charlotte attorneys regarding paternity, call 704-412-1442 today.
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Our attorneys can help with all aspects of Paternity and Legitimation including:
* Establishing or challenging paternity.
* Defendingyou against a paternity claim.
* Requesting DNA testing.
* Legitimizing children.
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Our Charlotte based lawyers are available to help with your paternity based issues in Mecklenburg and Cabarrus counties. Paternity is typically established by operation of law, such as when a married couple has a child together, or by an affidavit of parentage pursuant to N.C.G.S. § 110-132, where the mother and putative father sign and file a sworn statement asserting that the putative father is the natural father of the couple's child. If paternity has not been established by marriage or affidavit, legal action may be required.
N.C.G.S. § 49-14 holds that 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 AND prior to the death of the putative father, 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 within the period specified in N.C.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). Confused? Give us a call, we can explain.
A copy of the birth certificate of the child must be attached to any complaint for paternity, as well as the social security numbers, if known, of the child's parents. Proof of paternity must be established by clear, cogent, and convincing evidence. Evidence of paternity may take many forms, ranging from referencing relationships of the mother and putative father, sexual relations between the parties, actions of the putative father, the physical appearance of the child compared to the putative father, and DNA testing.
WE CAN HELP.
To speak with one of our Paternity attorneys regarding establishing paternity, motioning the court to order genetic testing, or legitimization, call us today at 704-412-1442.
To speak with one of our Charlotte attorneys regarding paternity or legitimation, call 704-412-1442 today. We can help.
To speak with one of our Charlotte attorneys in regards to establishing Paternity, call 704-412-1442 today.