Legitimation is the process of legalizing the status of a child born out of wedlock. This legal procedure places a child in a more favorable position in the eyes of the law than mere establishment of paternity or establishment of a duty to support the child by a putative father*. A legitimized child becomes the legal offspring of a putative father and the natural mother for all purposes, including inheritance.

A child in North Carolina can be legitimized by:

Request of the Father - The father, with the consent and cooperation of the mother, can file a written petition with the Clerk of Superior Court, stating that he is the father of the child and asking that the child be declared legitimate.

Subsequent Marriage - The child is automatically given legitimate status when the mother and a reputed father marry at some time after the birth of the child. (Reputed father means the child is "regarded," "deemed," "considered," or "held in thought" by the parents themselves as their child.) When this happens, the parents must request a new birth certificate for the child.

Read the North Carolina law regarding legitimation.
 

Establishing Paternity by Civil or Criminal Action

In a trial of any civil action to establish paternity, the court can order the mother, the child, and the alleged father to submit to paternity tests, such as DNA testing.

The results of the paternity test have the following effect:

A.  If the probability of paternity of the alleged father is less than eighty-five percent (85%), the alleged father is presumed not to be the father.  It is still possible to argue the results in court.  However, it can be rebutted only by clear and convincing evidence;

B.  If the tests show that the alleged father is not excluded and that the probability of paternity is between eighty-five percent (85%) and ninety-seven percent (97%), the results are admitted as evidence by the court and are weighed with other competent evidence;

C.  If the alleged father is not excluded and the probability of paternity is ninety-seven percent (97%) or higher, the alleged father is presumed to be the father and the results are admitted as evidence by the court.  This presumption can only be rebutted by clear, and convincing evidence.

D.  If more than one testing expert is involved and there is a disagreement as to the results of the tests, then the court weighs all the evidence in making a determination.

Read North Carolina law regarding paternity by civil action.

Criminal Action for Bastardy and Nonsupport

Another method of establishing paternity is through criminal proceedings, initiated by obtaining a nonsupport warrant or summons against the putative father. The aim of this type of proceeding is "to ascertain the paternity of the child and impose upon the father the burden of support, such as he would incur if the child were his lawful, instead of his illegitimate, offspring."

The issues of nonsupport and paternity can be established during the same court hearing.

Read North Carolina law regarding paternity and criminal action.

Establishing paternity does not have the effect of legitimization.

*A "putative father" is a man who may be a child's father, but who was not married to the child's mother before the child was born and has not established the fact that he is the father in a court proceeding