Who is the Father legally speaking?
The marital status of each parent to a child, whether the parents are married to each other or to another person, greatly impacts paternity and legitimation under the law. 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 of the child. No further legal action is needed to establish legitimation, and the husband is automatically granted certain rights toward the child simply due to the marriage. Therefore, if a married woman has a child with someone other than her husband, then the child’s “legitimate” father is different than the child’s “biological” father under the eyes of the law. However, this leaves open the option for the child’s biological father to file a petition for legitimation.
What can Unmarried Fathers do?
A father of a child born outside of a marriage must actually establish paternity or legitimate the child through legal action. This is true regardless of who is listed on the child’s birth certificate as the father, or if no one is listed. North Carolina General Statutes Chapter 49 defines the legitimation and establishment of paternity processes.
If a father chooses to establish legitimation 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 during wedlock.
Should a father choose to establish paternity or legitimation by petition, a petition is filed in a special proceeding with the Court. Once the Court has been shown that said person is the biological father, a Court Order will declare the legitimation or paternity of the child.
Legitimation or Paternity?
Legitimation and the establishment of paternity are completely separate legal proceedings and result in different outcomes.
Legitimation is about the status of the child, which necessarily affects the father’s privileges, rights, and legal obligations. If the child is born to a mother while she is married to a man other than the biological father, then the mother’s spouse will also need to be involved in the legitimation proceedings since said spouse’s rights are also affected. Only the biological father may file a legitimation petition with the Court. Upon showing proof of the biological relationship to the child, the Court will issue a legitimation order. A certified copy of the order will then be sent to the State Registrar of Vital Statistics for the issuance of a new birth certificate with the biological father’s information listed.
Once legitimated, a child has the ability to inherit from the biological father (which is particularly important should the biological father die without a will) as well as to sue for wrongful death of the father. Additionally, the biological father would have these same rights toward the child and the child’s estate.
In contrast, paternity is about the status of the father. The establishment of paternity does not automatically legitimate the child as referenced above. Once paternity is established, the father may be held financially liable to provide for the child via a child support action and the father may move forward with a custody action to have parenting time or visitation with the child.
If you are a father looking for legal assistance, our Modern Legal team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
