Paternity and legitimation questions come in many forms. Who decides what father’s name is on a birth certificate? What rights and responsibilities go with paternity? Can illegitimate children inherit from their father?
First, who gets on a birth certificate, and how? If the mother is married (even if she is separated), her husband is listed as the child’s father on the birth certificate, no matter whom she identifies as the father. That may seem odd, but a statute requires this because there is a starting presumption that her husband is the father. If her husband is not the father, then there will have to be additional legal steps taken (and DNA testing) to establish paternity.
If the mother is not married, hospital staff will ask the father’s name. The father may be there to provide the information himself, which makes things easier. If the father isn’t present and the mother says she does not know who the father is, no father is listed on the birth certificate. If she supplies a name for the father, that name is listed.
You can see how people might have different ideas about who is or may be the father, and how paperwork at the hospital may create problems. If a mother lists a father’s name but he denies it, he will need to get a DNA test. Fortunately, DNA testing is done by swabbing the inside of baby’s and Dad’s cheeks. It used to require a blood draw. A court will enter an order based on the DNA test either confirming paternity or not (and taking the father’s name off the birth certificate if appropriate).
The other side of that coin is when the mother lists no father on the birth certificate, but a man who feels sure he is the father wants to have the legal rights of a father. He can file a legitimation action (which also involves a DNA test). If the test shows a match, the court will enter an order recognizing him as the father, determining the child to be legitimate as defined by statute, and adding the father to the birth certificate.
Paternity matters for custody rights and for support responsibilities. Legal recognition as a father includes the right to participate in making decisions about the child, and the ability to ask the court to grant the father visitation or (in the proper circumstances) physical custody. By law, both parents have the responsibility to provide reasonable financial support for their child. If either parent is under age 18, that parent’s parents (the baby’s grandparents) are required to provide support. Once the parent reaches age 18, the responsibility of support for the baby is theirs; grandparents may choose to help, but aren’t legally required to do so. If the child’s mother needs help from the county Child Support Enforcement Office to establish and collect child support, that office will also assist with the paperwork necessary to establish paternity. Establishing paternity is a critical part of establishing a child support obligation.
Legitimation or a legally sufficient acknowledgment of paternity (both of which require taking legal steps) matter for inheritance. Without that, illegitimate children do not inherit from fathers in NC except through a will. If a man dies without a will, survived by two children by his late wife and one outside the marriage whom he treated like his own but never legally acknowledged or legitimated, his estate will go to his two legitimate children, excluding the other child. Without legitimating the child, he could still arrange for the child to inherit from him by having a will that includes all three children. A will doesn’t solve all the legal problems that arise from having an illegitimate child, but it does solve one.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.