This topic contains information on the following subjects:
Civil actions to determine the parentage of a child born out of wedlock are governed by NCGS 8-50.1 and NCGS 49, Article 3. Full civil proceedings (including a hearing and service of process) are required.
In accordance with NCGS 49-14, a civil action to establish the paternity of a child born out of wedlock can be taken at any time prior a child's eighteenth (18th) birthday. Proof of paternity shall be by clear, cogent, and convincing evidence.
However, if a child already has a legally responsible father due to marriage of the child's mother or a prior determination of paternity, paternity establishment is not appropriate, except as allowed in certain circumstances. See Legal vs. Biological Paternity or Paternity Disestablishment.
NCGS 49-16 allows civil actions to establish paternity to be initiated by:
When paternity is established by civil action:
If the defendant is not present and has not appeared at a prior hearing or signed a consent order for the case, signifying awareness of the action, CSS must file an affidavit with the court that indicates whether or not the defendant is in the military or that CSS does not know whether or not the defendant is in the military before a default order establishing paternity is entered. For more information, see the “Military” Chapter.
In any civil action to establish paternity, the court can order the mother, the child, and the alleged father to submit to paternity tests. Paternity testing is required in a contested paternity action that is brought more than three (3) years after the child's birth or that is brought after the death of the alleged father.
Paternity can be established after the death of the alleged father if the action was begun:
If paternity testing is ordered by the court:
The results of paternity testing in a civil action have the following effect:
If a paternity determination is pending in a CSS case, the agency can motion the court for a temporary order of support. If paternity testing has been completed and the results show clear, cogent, and convincing evidence of paternity, the court MUST enter a temporary support order.
If paternity is at issue for the child and the mother and alleged father have not voluntarily established paternity, CSS should initiate civil action to establish paternity by taking the following steps:
File a Complaint for Paternity with the Court –
Since paternity establishment is required to create a legal responsibility for support, CSS usually files a complaint for both paternity and support in one action. However, only paternity-related information is included here. Following the direction of the CSS agency attorney, CSS workers ensure that all necessary documents and information are prepared and issued, including but not limited to:
When the complaint is filed with the court, the Clerk assigns a court file number or docket number to the action.
Complete Service of Process -
The defendant and any witnesses must be given proper notice of the hearing. NC Rules of Civil Procedure require that service of an initial action to a defendant must be made as allowed by Rule 4.
A Civil Summons (DSS-4668) expires sixty (60)) days after it is issued if not served within that period.
If additional time is needed for successful service, generate and issue an Alias And Pluries Civil Summons (DSS-4669) before the expiration date.
If evidence of service is not presented, the court should not allow the hearing to proceed. Workers must ensure that proper evidence of service is prepared and available to the court. Documentation of service can be by:
Prepare for the Hearing -
Workers must ensure that the documentation necessary to support all complaint allegations and to present evidence at the hearing is available.
Participate in the Hearing -
The hearing is set in a civil district court with proper jurisdiction to hear the matter.
Document Court Actions -
Following the hearing, CSS workers must document thoroughly the actions and results associated with the hearing.
Legitimation is the process of legalizing the status of a child born out of wedlock; it is authorized at NCGS 49-10 through 49-13. 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 putative father's duty to support the child. As with paternity establishment, a legitimized child becomes the legal offspring of the father and the natural mother for all purposes, including inheritance.
Per NCGS 50-11.1, a child born of a voidable (annulled) or bigamous marriage is still considered legitimate. Therefore, it would not be necessary to subsequently establish paternity or legitimate a child born of these marriages.
CSS does not participate in legitimation actions; however, if parents have taken any action to legitimate their child, paternity is no longer at issue and the legally responsible father can be pursued for support of the child. Therefore, initial case investigation should include a determination of whether legitimation has occurred.
A child can be legitimated in one of the following ways:
1. Petition or Request of the Father - With the consent and cooperation of the mother, the father 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 (NCGS 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 sends a copy of the order and a completed copy of the Certificate Of Paternity (AOC-CV-611) to the State Registrar of Vital Records. The Registrar then issues a new birth certificate bearing the full name of the father.
2. Subsequent Marriage (NCGS 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 NC Vital Records. CSS cannot make this request for a parent, since only the parents can attest to the necessary information. If both the mother and the father acknowledge that they are the parents of this child and were married after the child’s birth, the child is legitimated by the subsequent marriage of the parents.
CSS can initiate a criminal action for support of a child born out of wedlock under NCGS Chapter 49, Article 1. Prosecution can be initiated:
Securing a nonsupport warrant or summons is often misconstrued to be an action that is taken only after paternity is established; however, the question of paternity is necessary for 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 can and should be established during the same court hearing. NCGS 8-50.1(a) prescribes that in a criminal action:
Conviction of willful failure to support a child born out of wedlock is a Class 2 misdemeanor offense.
Some effects of establishing paternity through criminal proceedings are:
Criminal action by CSS is not a regularly recommended method of paternity establishment. If specific case circumstances warrant, however, it can be used. When paternity is established through criminal proceedings, the District Attorney, not the CSS agency attorney brings the action on behalf of the State.
If the assessment of a new CSS case indicates a criminal order established the support obligation, the CSS agency attorney should review the order to determine if that order also established paternity. If so, paternity is no longer at issue and should not be re-litigated.
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.