This topic contains information on the following subjects:
Prior to 1997, an admission of paternity made by a parent required the approval of the court to establish paternity. In 1997, NCGS 110-132 was revised to declare that a voluntary admission of paternity made by the parents of a child has the same legal effect as an order of paternity, unless the admission of paternity is rescinded by either parent. See Voluntary Paternity Rescission.
This statute provides an administrative process by which paternity of a child born out of wedlock is established through the parents signing an Affidavit Of Parentage.
The NC Affidavit Of Parentage contains the following:
Before signing the Affidavit, parents must be given information to assist them in making an informed decision to establish paternity in this manner. This information must include:
This information must be presented in both oral and written forms.
Each parent's signature must be properly notarized and the completed Affidavit filed with NC Vital Records. When filed with NC Vital Records, paternity is established and the name of the father is entered on the child's birth certificate.
NCGS 130A-101 requires that the mother's husband be listed as the father on a child's birth certificate. If the mother is married to someone other than the biological father of the child, the signing of an Affidavit of Parentage by the parents does not constitute establishment of paternity for the biological father.
If an Affidavit is signed in this circumstance:
Each parent has up to sixty (60) days after signing the Affidavit of Parentage to rescind or retract the admission of paternity. See Voluntary Paternity Rescission.
If the alleged father is not willing to admit paternity, voluntary paternity testing might be an option. Testing that results in a high probability of paternity can often assist him in making a decision to sign an Affidavit.
If paternity is at issue for the child and the mother of the child is confident of the identity of the father, CSS workers offer her the opportunity to sign a sworn statement declaring the name of her child's father.
CSS workers take the following actions to establish paternity voluntarily:
In accordance with the provisions of NCGS 110-132(a), the opportunity to voluntarily declare paternity for a child is made available to parents at North Carolina birthing hospitals, county health departments, and NC Vital Records. If parents have established paternity voluntarily at a birthing hospital or other location, CSS must obtain a copy of the Affidavit Of Parentage and document in the case record that paternity has been established.
Completing a new Affidavit is not appropriate because paternity has been established and is no longer at issue.
When parents elect to voluntarily establish paternity at a hospital or other location, designated staff must provide parents with all of the information about the administrative process that is required by law.
The mother and the natural father are given the opportunity to sign an Affidavit Of Parentage For Child Born Out Of Wedlock (DHHS-1660). This form is identical to the Affidavit Of Parentage (DSS-4697) that NCCSS uses.
NCGS 110-132(a) provides that an admission of paternity made by signing an Affidavit Of Parentage is considered final, unless it is rescinded (or retracted) by either parent. Rescission is allowed up to sixty (60) days after the date when a parent signs the Affidavit. However, the opportunity to rescind the admission ends if an order establishing paternity and/or support for the child is entered earlier than sixty (60) days after the Affidavit is signed.
An order of rescission only removes an admission of paternity. It is not a determination that this man is not the legal father of the child. If the court orders the rescission of the paternity admission, the Clerk of Court must notify the State Registrar of Vital Records. The father's name is then removed from the birth certificate. Any future birth records that are requested from NC Vital Records will not include the father's name. However, if the requesting party fails to appear or present the issue, the court must find the alleged father to be the legal father of the child.
After more than sixty (60) days have passed since the signing of the Affidavit Of Parentage, paternity can be challenged in court only on the basis of fraud, duress, mistake, or excusable neglect. The burden of proof is on the challenging party. In such a challenge, the issue of paternity is determined by court order and is no longer eligible for rescission. If a support obligation exists, it remains in effect during the challenge. Also see Paternity Disestablishment.
If the mother names the same alleged father after a rescission order has been entered, paternity establishment activities would proceed as though no action had previously occurred. It is probable that paternity testing and/or a civil paternity action would be appropriate in this situation.
To rescind an admission of paternity, the challenging party (father or mother) must complete and file a Motion And Notice Of Hearing To Rescind Affidavit Of Parentage (AOC-CV-916M) with the court, along with a copy of the signed Affidavit Of Parentage, within sixty (60) days of the date of signing by the challenging party.
When filing the motion, the challenger is responsible for notice being served on all parties, including the CSS agency, in the CSS case, in accordance with Rule 4 of the North Carolina Rules of Civil Procedure. The CSS agency must not assist or advise the challenger in preparing or executing the motion. The CSS agency attorney does not represent the challenging party at the hearing.
NC law does not require that rescission requests be made in any specific county; however, filing usually occurs in the rescinding party's county of residence. If reason exists to believe that a motion to rescind has been filed, it is appropriate for the CSS worker to inquire of the parties or the Clerk of Court to locate or verify the filing.
When notified that the father or mother has filed a motion to rescind an Affidavit with the Clerk of Court, CSS takes the following actions:
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.