A growing trend in the United States today is that more and more children are being born out of wedlock. In fact, the number of children born to unmarried women in North Carolina mirrors the national trend at 41% (Annie E. Casey Foundation, KIDS COUNT Data Center). The term legitimation derives from the word legitimate, meaning “lawfully begotten” or “born in wedlock.” If a child is legitimized, then they are legally recognized as the child of his or her parents and are entitled to inherit from his or her mother or father intestate. N.C.G.S. §49-11.
The reason legitimation is important is because it establishes specific legal rights of a child at birth such as:
- The right of a child to have visitation or custody with a parent;
- The right of the child to receive financial support from their parent so that they are not wards or public charges of the State; and
- The right to inherit property from the father if the father dies without a will.
Other than the legal benefits of legitimation, there is a social value of knowing who you are, where you come from, and what your family history is.
The most common form of legitimation is when a child is born to a mother and father who are married. There is a common law presumption that if a married woman has a child, her husband is presumed to be the father and the child is automatically legitimized. But when a child is born to an unwed mother, there are only a few ways that that child can become legitimized. One way an illegitimate child can be legitimized is by the reputed father (meaning the man that is believed to be the father of the child) marries the child’s mother after the child’s birth (N.C.G.S. 49-12). If this takes place, no court action is needed, and the child is considered to be legitimized. But if the father never marries the mother, then the father will need to bring a special proceeding to establish that he is the biological father. The putative father is the only person that can bring a special proceeding to legitimize the child and he can bring this proceeding at any time no matter if the child has already reached the age of majority.
Since a legitimation action can only be brought be the putative father, if someone else wants to prove that a man fathered a child, they will have to bring a paternity action. This can be brought by the father, the mother, the child, a personal representative of the mother or child, and even by a county department or child support services. This action must be brought before the child’s 18th birthday. N.C.G.S. 49-14(a). A civil paternity action can only be brought:
- Prior to the death of the putative father;
- Within one year after the death of the putative father, if a proceeding for administration of his estate has not commenced within one year of his death; or
- If an estate proceeding has commenced within that year, but it is allowed within the time period set forth in N.C.G.S. 28A-19-3(a).
It is also important to know that paternity must be proven by clear, cogent, and convincing evidence and if the child is over 3 or if the paternity action is brought within a year of the putative father’s death in a contested case, there must be evidence of blood or genetic marking to prove paternity.
Whether you are a father wanting to legitimize a child to establish child and parental rights or you are a mother or child trying to prove paternity, you should seek professional advice about how to proceed with this important issue. There is a process that needs to be followed and it can become difficult if other parties involved in the process want to challenge the proceedings. At Ludlum Law Firm, we have over 45 years of combined experience in practicing law in Duplin and Sampson counties. If you have an issue involving legitimation or paternity, give us a call and make an appointment for a consultation to speak with one of our attorneys.