In 2021 in North Carolina, 41% of births were to unmarried mothers. In the same year in South Carolina, 45% of births were to unmarried mothers (see link here for source information). It is no longer uncommon to have a baby while being unmarried. If you are unmarried and having a child with a partner, it is best to protect the father and your child by establishing their legal relationship. You protect their legal relationship by establishing paternity, and if necessary, legitimating the child through the court system. Once paternity is established, unmarried fathers have the same parental rights as married fathers. Establishing paternity allows either parent to request child support payments from the other and protects the father’s right to parenting time with the child. Paternity addresses the father’s status as a parent to the child, not the child’s status as a legitimate child.
Please note: even if you are the biological father of the child, you are not presumed to be the legal father of that child unless you establish paternity and legitimate your child. If Mother is married and the biological father is someone other than Mother’s husband, the biological father must establish legal paternity.
When you establish paternity, a legal obligation is created for the father of the child to financially provide for the child. Paternity also establishes a right for the child to receive government benefits, health insurance, and military benefits from the father. Establishing paternity does not, however, allow for a child to inherit from the father if the father dies—legitimation is the process that grants inheritance rights for the child.
There are three ways to establish paternity, which are outlined below.
1.Dad and Mom marry after the birth of the child.
If Dad and Mom marry at any time after the birth of the child, Dad is automatically presumed to be the legal father of the child. In North Carolina, you do not have to take any other steps to establish your paternity if you marry after the baby is born. Marriage not only establishes paternity but allows the child to be legitimated. Legitimation is an archaic term that harkens back to times when having a child out-of-wedlock was deemed taboo. Unfortunately, our laws have not caught up with the times and children conceived by unmarried parents are still considered “illegitimate” in the eyes of the law. If the father’s name was not initially included on the child’s birth certificate, a new birth certificate bearing the full name of the father shall be issued by the state after the parents’ marriage.
In South Carolina, you will have to take additional steps to legitimate your child after you marry. You must provide a certified copy of the marriage license and both parents must sign an affidavit in front of a notary public attesting to the child’s parentage. Finally, you will need to request a certified copy of the birth certificate.
2.Sign an Affidavit of Parentage (in North Carolina) or a Paternity Acknowledgment Affidavit (South Carolina).
An affidavit of parentage is a voluntary acknowledgment by the father that he is the biological father of the minor child. The affidavit can be signed in the hospital after the baby is born. It is a legal document signed under the penalty of perjury and swears that Dad and Mom are the biological parents of the child. Once the Affidavit of Parentage is signed, then Dad’s name can be put on the child’s birth certificate.
In South Carolina, a Paternity Acknowledgment Affidavit creates a legal finding of paternity. This can also be done in the hospital after the baby is born. Both parents must swear in the presence of a notary public that the father is the biological and legal father of the child. You do not have to take any further steps to legitimate your child in South Carolina after completing the affidavit—your child will be entitled to inherit from you even if you die without a will.
3.File a paternity lawsuit, if necessary.
Either parent can establish paternity by filing a lawsuit in court. This is the most costly and time consuming way to establish paternity. A paternity action can be filed by the father who wants to establish that he is the biological and legal father of the child, or it can be filed by a mother requesting the court to require the father to legally and financially provide for the child. Additionally, paternity actions can be filed by the child or on behalf of a custodial parent or the child (for instance, by Child Support Enforcement). If paternity is in question, a judge can order the father to take a DNA test or can order a mother to bring the child to be DNA tested.
If you need help navigating the state requirements for legitimation, please reach out to us to schedule a consultation and we can help you understand what you need to do to ensure that as an unmarried parent, yours and your child’s rights are secure.
Lindsey Dasher is the Managing Partner at Dasher Law PLLC