When unmarried parents end up in a custody or child support dispute, paternity sometimes becomes an issue. This often arises when the parties were unmarried at the time of conception or when the father’s name is not on the birth certificate. If there is a question of paternity, either party may move the court to order a paternity test be performed. Also, if the parties were unmarried at the time of birth, and plan to remain unmarried, the father may wish to file to legitimate the child.
Paternity actions are governed by N.C.G.S. § 49-14, which says that the paternity of a child born out of wedlock may be established by civil action at any time prior to such child’s eighteenth birthday AND prior to the death of the putative father, within one year after the date of death of the putative father (if a proceeding for administration of the estate of the putative father has not been commenced within one year of his death), OR within the period specified in N.C.G.S. § 28A-19-3(a) for presentation of claims against an estate (if a proceeding for administration of the estate of the putative father has been commenced within one year of his death). This is typically done by motion in a family court proceeding.
On the other hand, legitimation is a special proceedings matter. Both the mother and father are necessary parties to the petition for legitimation, and a certified copy of a certificate of birth of the child must be attached to the petition. If it appears to the court that the petitioner is the father of the child, the court may declare and pronounce the child legitimated; and the full names of the father, mother, and the child shall be set out in the court order decreeing legitimation of the child.