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This topic contains information on the following subjects:
1. Legitimation;
3. Criminal paternity action for bastardy and nonsupport;
4. Scheduling a court hearing to establish paternity;
5. Entering a finding of paternity that resulted from a court hearing.
Legitimation is the process of legalizing the status of a child born out of wedlock. This procedure places a child in a more favorable position in the eyes of the law than mere establishment of paternity or establishment of a duty to support the child by a putative father. A legitimized child, as in the case of paternity establishment, becomes the legal offspring of a putative father and the natural mother for all purposes, including inheritance.
A child can be legitimated in one of the following ways:
1. Petition or Request of the Father - The father, with the consent and cooperation of the mother, can file a written petition with the Clerk of Superior Court, stating that he is the father of the child and asking that the child be declared legitimate (G.S. 49-10, 49-11, and 49-13). If the Clerk of Court concludes that this man is the father of the child, an order to that effect can be issued. The Clerk of Court forwards a copy of the order to the State Registrar of Vital Records, along with a completed copy of the Certificate Of Paternity (AOC-CV-611). The Registrar then issues a new birth certificate bearing the full name of the father.
2. Subsequent Marriage (G.S. 49-12) - The child is automatically given legitimate status when the mother and a reputed father marry at some time after the birth of the child. (“Reputed father” means the man who is regarded or considered to be the father by the parents.) The parents can then request that the child's birth certificate be amended to include the name of the father. This request can be made to the Register of Deeds in the child's birth county or to N.C. Vital Records.
Per G.S. 50-11.1, children born of a voidable marriage (annulled, bigamous) are still considered legitimate; it would not be necessary to subsequently establish paternity or legitimate children born of these marriages.
1. G.S. 49-14 permits the establishment of paternity in a civil case until a child's eighteenth (18th) birthday. The law requires that a paternity test must be used when a contested paternity action is brought more than three (3) years after the child's birth or is brought after the death of the putative father. Proof of paternity shall be by clear, cogent, and convincing evidence. Either party to the action to establish paternity can request that the case be tried at the first session of the court after the case is docketed, but the judge can first try any pending case before doing so. A judgment by default shall be entered if the defendant fails to appear after receiving notice of the hearing.
In a trial of any civil action to establish paternity, the court can order the mother, the child, and the alleged father to submit to paternity tests. Verified documentary evidence of the chain of custody of the specimens obtained shall be competent evidence to establish the chain of custody. Any party contesting the procedures or result of paternity testing must file written objections with the court and serve copies on all other parties not less than ten (10) days prior to a hearing on the results of the testing. If no such objections are filed, the test results are admissible as evidence of paternity without the need for testimony or other proof of authenticity or accuracy.
The results of the paternity test have the following effect:
A. If the probability of paternity of the alleged parent is less than eighty-five percent (85%), the alleged parent is presumed not to be the parent and the results are admitted as evidence. This presumption can be rebutted only by clear, cogent, and convincing evidence;
B. If the tests show that the alleged parent is not excluded and that the probability of paternity is between eighty-five percent (85%) and ninety-seven percent (97%), the results are admitted as evidence by the court and are weighed with other competent evidence;
C. If the alleged parent is not excluded and the probability of paternity is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the father and the results are admitted as evidence by the court. This presumption can only be rebutted by clear, cogent, and convincing evidence.
D. If more than one testing expert is involved and there is a disagreement as to the results of the tests, then the court weighs all the evidence in making a determination.
For a case with a pending paternity determination, the CSE agency can motion the court for a temporary order of support. Upon such a motion and a showing of clear, cogent, and convincing evidence of paternity, the court must enter a temporary support order. Paternity test results showing a ninety-seven percent (97%) or higher probability of paternity are clear, cogent and convincing evidence. If the putative father is found not to be the biological parent, the full amount of temporary support paid must be reimbursed to the putative father.
Prior to proceeding under G.S. 49-14(c) to establish paternity involving a deceased putative father, local CSE should review the case to determine if action to establish paternity has begun prior to the death of the individual and review records at the Clerk of Court's office to determine whether or not any action related to the estate has been filed. At this point, the attorney representing the agency is consulted to determine the next course of action based on the case circumstances.
Local CSE must not initiate actions under G.S. 49-14 to establish paternity or to enter any judgments related to paternity after the death of the putative father, except in those situations in which action is commenced either:
2. Civil Action to Establish Paternity under G.S. 49.16 can be brought by:
A. The mother, father, child, or personal representative of any of them; or
B. The Director of Social Services or any person who by law can perform such duties (for example, CSE caseworkers):
1) In the county where the mother resides or is found;
2) In the county where the putative father resides or is found; or
3) In the county where the child resides or is found, when the child or mother are likely to become a public charge.
3. Effects of this method of establishing paternity under G.S. 49-15 are:
A. It does not have the effect of legitimization;
B. Duty of support is the same as if the child is legitimate;
C. The father becomes responsible for medical expenses incidental to pregnancy and the birth of the child;
D. The surname of the child remains the same as that of the mother;
E. The child is eligible for the Social Security and Veterans Benefits of the putative father; and
F. Full civil proceedings (including a hearing and service of process) are required.
4. In those situations involving a "legal" (spouse) and a "biological" father, it is necessary to determine the correct approach on a case by case basis. In general, it is not always be necessary to require the presence of the legal father or to make the legal father a necessary party to a subsequent action against the biological father, per Lombroia V. Peek, 107 N.C. App. 745 {1992}.
Under Lombroia, the court found that a judgment already existed in Florida, finding that the husband was not the father of the child in question, making the issue res judicata as to his interest in the subsequent proceeding against the biological father. In addition, if a paternity test performed on the biological father indicates a ninety-seven percent (97%) or above probability of paternity, then the biological father must rebut the presumption with clear, cogent, and convincing evidence. Therefore, paternity testing should be encouraged even if the biological father is agreeable to voluntarily establish paternity and support.
If a biological father has such a paternity test result, and the mother can testify to sexual relations with the biological father, and non-access to the legal father, then suing both the biological and legal fathers is not only unnecessary but also can assist the biological father in rebutting the presumption of paternity, per Wright V. Wright 27 N.C. app. 45 cert. denied, 288 N.C. 513 (1975).
However, if the husband had already been adjudicated by the court as the legal father (such as a divorce proceeding), then the issue is res judicata, and the presumed biological father should not be pursued. The CSE attorney advising the agency should be consulted before proceeding with any paternity case involving both a legal and a biological father.
Another method of establishing paternity is through criminal proceedings, which are initiated by obtaining a nonsupport warrant or summons against the putative father. The aim of this type of proceeding is "to ascertain the paternity of the child and impose upon the father the burden of support, such as he would incur if the child were his lawful, instead of his illegitimate, offspring."
The securing of a nonsupport warrant or summons is often misconstrued to be an action taken only after paternity is established; however, the question of paternity is incidental to the prosecution for nonsupport.
The state must prove in trial: first, the defendant's paternity of the child, and second, his willful neglect or refusal to adequately support the child. Thus, with the filing of charges for nonsupport for cases in which paternity has not been established, the issue of paternity should and can be established during the same court hearing. In using this process, caseworkers should take care to ensure that demand for support of the child is made upon the defendant (father) before the criminal process is drawn.
The defendant should be given adequate time for response to such a demand before CSE applies for a warrant or summons for nonsupport of an illegitimate child. Court officials at the local level can best determine the time to be allowed between the demand and the drawing of a warrant.
Some effects of establishing paternity through criminal proceedings are:
1. It does not have the effect of legitimation;
2. The duty of support is present until the child reaches eighteen (18) years of age or is emancipated, unless the order expires or the defendant defaults and the suspended sentence is imposed. In this case, the action must be reinstituted. Therefore, civil action is deemed more appropriate.
3. The child's surname remains the same as that of the mother; and
4. The child becomes eligible for all Social Security and Veteran's Benefits, as if he/she were the legitimate offspring of the father.
When paternity is established through criminal proceedings, the District Attorney/solicitor acts on behalf of the state and the person bringing the action. In the methods of establishing paternity listed previously, other legal counsel is needed.
After caseworkers have submitted the necessary documents to the Clerk of Court, the Clerk informs them when the hearing is to take place. Once a hearing is set, caseworkers schedule a court hearing to establish support.
If the paternity hearing results in a paternity and support order, caseworkers enter support order data for the case in ACTS. If the paternity hearing results in a Paternity-Only order, caseworkers also enter order data in ACTS, even though NO financial provisions exist.
Caseworkers are required to enter the disposition (result) of a scheduled paternity hearing in order to record the paternity finding, whether or not a support obligation is established.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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