Unmarried Father’s Rights

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.

Questions? Need to Know More?

If you are an unmarried father who has questions about establishing paternity, contact us at 704-442-0000, or fill out the form.

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Written by

Nicole Sodoma

Founder and Managing Principal

The nicest compliment I’ve ever received about Sodoma Law was from a judge who described us as “smart, tenacious, and compassionate.” When clients come to us in the middle of a divorce or a custody battle, they deserve that blend of qualities from each of our family law attorneys. They need family law attorneys who will fight for them in the courtroom and empower them to achieve their goals at a difficult time in their lives. When I opened the doors to Sodoma Law in 2008, I wanted to build a team who would help every client navigate the hurdles of separation and divorce with empathy and determination – in and out of court. I wanted to surround myself with people who live and breathe family law like I do. This practice is my passion; it’s not my job, but rather, who I am. In hindsight, I have to believe that the events of my childhood led me on this path. I often joke with my family that my experience as a child of parents with “irreconcilable differences” predestined my career. As a family law attorney, I feel the advantage of understanding the experience of separation and divorce through the eyes of an adult and as a young girl. That experience was fraught with anxiety, especially at the beginning. I believe it’s our job, as family law attorneys, to educate our clients on their various legal options so as to reduce that anxiety and allow them to feel more in control of their cases. At our firm, each attorney and staff member believes not only in their ability to make a difference in a client’s life but also their ability to be supportive of a client’s emotional, spiritual and physical well being. After more than two decades of practicing as a family law attorney, I know that when our clients contact us, they are typically making one of the biggest decisions of their lives. They each have somehow empowered themselves enough to make the journey to change what he or she has known… whether it was for one year or twenty years. I understand it is not always hard for everyone, but change affects us all. I see it with my clients. I saw it with my own parents. Working with someone you trust is critical. From the moment we discuss your case, you will know that I will always do my absolute best to handle your concerns as if they are my own.