Since the beginning of time, Mothers have known without a doubt who their biological children are; Fathers on the other hand are not that lucky. Due to the uncertainty of parentage for Fathers it is important to sort out paternity at the onset of a custody lawsuit.
Establishing Paternity: Unmarried Fathers
Due to the uncertainty of biology, North and South Carolina both have laws that state unmarried Mothers are automatically granted sole custody of their children at birth. Unmarried Fathers have no legal rights, unless or until they have established their paternity in a court of law.
It is important to note that being listed on the child’s birth certificate and/or signing an affidavit of parentage at the hospital when the child is born does not endow you with parental rights. Getting a paternity test that proves you are the biological Father of your children, does not endow you with parental rights. Further, marrying the Mother of your children after they are born, will not endow you with parental rights.
Unmarried Fathers must go through the extra step of going to Court and acknowledging their paternity under oath so that they can be adjudicated the Father of their children and endowed with the same parental rights Mothers are granted automatically at birth. When you go to Court to be adjudicated the Father of your children, you may be asked to provide your paternity test, birth certificate, and/or affidavit of parentage in support of your testimony and request to establish paternity.
What are parental rights and why should you fight for them?
Parental rights include but are not limited to the right to have the children in your possession, care for the children as you see fit, and make decisions for your children, such as, where are they going to live? What medical attention are they going to receive? What type of education are they going to receive? What is their religion going to be? What will their diet entail? Who gets to spend time with the children?
If you are an unmarried Father and you choose to sleep on your parental rights, the Mother will automatically have sole discretion as to all decision making regarding the children’s health, education, religion, day-to-day activities, general welfare, and she may even have final say as to whether or not the children will see you.
If you are still in a relationship with the Mother of your children and the two of you are living together, this may not be an issue for you. However, if you break-up, the Mother could legally leave with your children and not let you see them unless or until you take her to Court. Therefore, it is important to establish your paternity sooner rather than later. If you and the Mother of your children are still on good terms, paternity can be established by agreement with the Court. You do not have to wait become adversaries before establishing your paternity.
Keep in mind that with great power also comes great responsibility. Once you are adjudicated the Father of the minor children, you will also be financially responsible for them and could be ordered to pay child support. If child support is something you are hoping to avoid, it is important to be aware that even if you do not go out of your way to be adjudicated the Father of your children, the Mother of the children could take you to court on her own volition in order to obtain child support for the children.
Children Born During Marriage
Again, due to the uncertainty of biology and let’s be honest, some antiquated laws, North and South Carolina both have laws that state any children born while two people are legally marriage will be considered the legal responsibility of the Husband. Unlike a child born outside of marriage, a Husband being designated as the “legal father” happens automatically at birth. This is true regardless of whether the Wife cheated one time, or even if the Husband has not seen his Wife in many years and there is no physical possibility that the Husband is the biological parent of the child born. Being the legal father means that you have a duty to care for and support the child as if the child were yours.
In some instances, a legal father may choose to raise the child as his own. If that is the case, no action is needed. However, it is important to note that if the biological father is out there and aware of the child, he could always bring an action to establish paternity as outlined above.
On the other hand, if you are deemed the legal father and would do not want to be legally or financially responsible for a child who is not biologically yours, you will need to file an action to disestablish your paternity. Disestablishing paternity can be very easy if there is a biological father who is eager and willing to step into the role as Father. In that scenario, establishing and disestablishing paternity can be done by consent in one action. If there is no biological father in the picture, the disestablishing paternity could be more complicated. In then scenario, the Court will consider all the of relevant facts and circumstances, including but not limited to: the age or the child; whether or not you have acted as the father to the child and if so, for how long; the best interest of the child; etc. If at any point your interest conflict with the best interest of the child, the child’s interests will be granted greater weight. Specifically, if disestablishing your paternity would harm the child, the court may deny your request.
So much could be said regarding the issue of psychological parentage, but it is important to mention the subject when discussing the establishment of paternity at least briefly. A psychological parent is someone in a child’s life (male or female) who has taken on the role of the child’s parent and generally is the only mother/father that the child has ever known. A psychological parent is not a legal parent nor a biological parent. They have no legal rights to the child, and they have no financial obligations to the child.
In a case where a woman takes on this role, it is strictly voluntary as she is aware that she is not the child’s biological mother, though the child may think she is. However, if you are a man in this situation, you may have thought the child born to your girlfriend was your biological child until there is a break-up or custody battle and you later learn the child is not yours. If this is the case, you likely will be not able to obtain custody of the child, but you could still seek visitation with the child because you are the psychological parent and removing you from the child’s life would be contrary to their best interest.
Every case is different. If you have specific questions about your rights or obligations as a Father, we encourage you to schedule a consultation so that we can assist you in figuring out your options.