What Rights Do Unmarried Fathers Have?
In the eyes of the law, legitimation and paternity of a child is established in different ways depending on whether the parents are married or unmarried. The process of legitimation ensures that a child is legally recognized as the child of the parents and to allow the child to inherit from both the mother and father. Legitimation also imposes responsibilities, privileges, and rights upon the parents of the child.
In North Carolina, when the mother is married at the time of birth, the law presumes that the man to whom she is married is the father. No further legal action is needed to establish legitimation, and the husband is automatically granted paternity rights due to the marriage. This operation of law occurs even if the biological father has a child with a woman married to another man. It is possible that the other man, to whom she is married, will be legally recognized as the birth father instead of the biological parent. This is one of the very reasons why surrogacy can be challenging but overcome with the proper counsel.
Establishing Paternity for Unmarried Fathers
In contrast, a father of a child born outside of a marriage must actually establish paternity and legitimate the child through legal action. This is true regardless of who is listed on the child’s birth certificate as the father. North Carolina General Statutes Chapter 49 defines the path to establish paternity by marriage or by filing a petition with the Court.
If a father chooses to establish paternity by marriage, then he may marry the mother at any time after the birth of the child. After the marriage, the law will find that legitimation has occurred and will treat the child’s situation as if the child had been born in wedlock.
Should a father choose to establish paternity and legitimation by petition, he will first need to file the petition in a special proceeding asking the Court to declare the child as his own. Once the Court has been shown that he is the biological father, a Court Order will then be issued declaring the legitimation and paternity of the child. A certified copy of the order of legitimation will be sent to the State Registrar of Vital Statistics who will then issue a new birth certificate with the biological father’s information. If the child is born to a mother while she is married to a man other than the biological father, the father will have to take similar steps in filing the petition. The main difference is that the spouse of the mother will also need to be involved in the proceedings since his rights also are addressed and changed by a legitimation proceeding.
Once paternity is established, certain rights and legal obligations are attached to the father. These include the right of the child to inherit from the father, the right of the father to move forward with a custody action to have parenting time or visitation with and custody of the child, and the obligation of the father to financially support the child. A child custody action through the Court may also permit an avenue through which paternity can be established by incorporating the legitimation proceedings.
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