Child Custody Disputes Involving Unmarried Biological Fathers

In North Carolina, the father of a child born out of wedlock, whose name is not on the child’s birth certificate, will be treated as a third party in a custody dispute if he has not acknowledged or affirmed his paternity. If you are the biological father of a child born out of wedlock, and not listed on the birth certificate, you need to make sure your parental rights are protected by contacting an attorney. The attorneys at Arnold & Smith, PLLC, are here to defend your parental rights. Contact us today for your initial consultation.

The parental rights of a mother remain the same regardless of marital status. Alternatively, an unwed father must establish paternity to acquire the same rights as the mother. By establishing paternity, a father gains the right to claim custody; however, until his right to custody is established, the mother has the right to refuse visitation to the father. Under such circumstances, a father may challenge the mother’s refusal for custody or visitation by filing a paternity action. If the court finds the mother to be unfit, or to be acting contrary to the benefit of the child, the court may grant the father custody or visitation rights.

The General Assembly of North Carolina has created legislation that confirms the legally binding relationship between illegitimate children and their biological fathers. Specifically, the North Carolina Court of Appeals found that the previously applied common law presumption in favor of awarding custody to the mother of an illegitimate child had been abolished by both case and statutory law. The Supreme Court of North Carolina has interpreted the statutory changes to mean that both the mother and father have parental rights unless it is demonstrated to the court that they are unfit.

North Carolina statute explains what “establishing paternity” looks like. A father can establish paternity by “clear, cogent, and convincing evidence” any time before the child turns eighteen through a civil action. There are two ways a father can establish paternity:

1. Affidavit of Parentage: If you are certain that you are the child’s biological father, you can establish paternity through a sworn statement. If both you and the child’s mother provide written confirmation of paternity, this may have the same legal authority as a court order. These statements must be signed in front of witnesses. It is important to consult an attorney before signing anything to ensure that your rights are protected.
2. Civil Action: If more than three years have passed since the birth of the child, you may need to file a civil action to establish paternity. In a civil action, the court will order a blood or genetic marker test to confirm that you are the father. As long as the results confirm that the alleged father is, in fact, the biological father within a 97% certainty, the court will issue a final order of paternity.

Once paternity has been established, the rights, duties, and obligations of the mother and father regarding custody and support of the child are the same. The father, after the establishment of paternity, becomes responsible for the medical expenses stemming from the pregnancy and birth of the child. For a father to maintain the legal right to custody, his conduct must be consistent with his right to care for and control his child. This requirement applies to the mother’s parental rights as well. In the case that the mother was found unfit, or to be acting in a manner, not in the best interest of the child, the court will likely grant primary custody to the father.

Recently, there has been a dramatic rise in the number of couples opting to forego marriage altogether, while still raising a family. As a result, North Carolina law has continuously evolved to provide unwed parents with equal rights to the companionship, custody, care, and control of their children.

If you are an unmarried parent undergoing a child-custody dispute, we can help. At Arnold & Smith, PLLC, we understand how stressful this time can be. Contact us today by calling 704-370-2828 to learn how we can defend your parental rights. For your safety and convenience, we now offer video and phone conferencing. If you prefer an in-person consultation, we have three easy to reach locations in Uptown Charlotte, Monroe, and Mooresville.