North Carolina law distinguishes between legitimate and illegitimate children. For a child born out of wedlock to enjoy all the privileges, rights and benefits granted to children born of married parents, the child must be legitimated.
Limitation on illegitimate children
Public policy provides that the absence of a legal tie by marriage with the child’s mother permits State government to place limitations on the father-child relationship. As a result, a child who is illegitimate does not enjoy the same rights and privileges of a legitimate child. Chapter 49 of North Carolina’s State statutes allows a father to legitimate his child
Effect of legitimation
Once a child is legitimated, the father and mother of the legitimated child have all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful children to the same extent as if the child had been born in wedlock. A successful legitimation proceeding also entitles the child to inherit real and personal property to the same extent as a legitimate child. A legitimate child can sue for the wrongful death of his or her father whereas an illegitimate child cannot.
Birth certificate & changing the child’s surname
Once a child is legitimated, vital records, including the child’s birth certificate, are updated to reflect the name of the child’s father. North Carolina law allows the child’s surname to be changed upon a successful legitimation. However, our court’s have declared this provision to be unconstitutional. See Jones v. McDowell, 53 N.C.App. 434, 281 S.E.2d 192 (1981). Therefore, under current case law the surname can only be changed with the consent of the mother.
Children born during marriage
North Carolina courts presume children born during a marriage to be the product of the marriage. See Jones v. Patience, 121 N.C. App. 434, 439, 466 S.E.2d 720, 723, appeal dismissed and disc. review denied, 343 N.C. 307, 471 S.E.2d 72 (1996). If a man fathers a child with a mother who is married to another man, the father may file a special petition to legitimate the child and declare the child his.
Legitimation by subsequent marriage
When the mother of any child born out of wedlock and the father of that child marry after the birth of the child, the child shall be deemed legitimate as if the child had been born in lawful wedlock. No legal proceeding is required.
Legitimation by special proceeding
Only the father may file an action to legitimate the child. Signing an Affidavit of Paternity or litigating paternity for the purposes of child support does not entitle the child to all of the rights and benefits of a legitimate child. The only way under current case law for an illegitimate child to have all of the rights and benefits of a legitimate child is through the marriage of the parties or a special proceeding.
If you have questions about legitimating a child in North Carolina, you should consult with an attorney licensed to practice law.