Am I obligated to submit to a DNA test if my ex is threatening to stop child support?
Full Question:
Answer:
A child born to a married couple is considered legitimate in the eyes of the law. However, the fact that a person's name appears on a birth certificate is not conclusive proof of paternity. Since there is no requirement that a father sign a birth certificate, a mother may list anyone whom she believes is, or wants to be, the father. If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. If the mother and father acknowledge paternity and complete the application for a birth certificate they can both choose the child's name.
A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. Most states will permit a father to execute an affidavit acknowledging paternity, which eliminates the need for a court action. The affidavit must also be signed by both mother and father, notarized, and filed with the court. Once a paternity affidavit is filed and signed by a judge (if required by state law), the father cannot later attempt to rescind or void the affidavit.
In most states, a paternity action takes the form of a civil lawsuit, and is clearly not a criminal matter. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity. Upon the order of a court in North Carolina, if an action to determine parentage is filed and it is determined that a certain individual is the father of the minor child(ren) and that determination contradicts the child's birth certificate, a new birth certificate will be issued reflecting the father as established in the court order.
A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future.
Termination of parental rights is a court order that severs the rights, powers, privileges, immunities, duties and obligations between a parent and child. A termination of parental rights may be voluntary or involuntary. Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child’s best interests. Such a decision may be made based upon, among other factors, abandonment by a parent, child abuse, unfitness of a parent, and other injuries to a child. The parent whose rights are sought to be terminated has certain due process rights, such as proper notice and a hearing. After the termination of parental rights, the child is placed with someone other than the parent whose rights are terminated, such as the other parent or a foster home. A parent whose rights are terminated is generally relieved of the obligation to pay child support, however, courts are reluctant to allow parents to avoid their child support obligations by waiving all parental rights to their children. Some courts disallow a parent to terminate parental rights in order to avoid child support payments.
The following are North Carolina statutes:
110-132. Affidavit of parentage and agreement to support.
(a) In lieu of or in conclusion of any legal proceeding instituted to
establish paternity, the written affidavits of parentage executed by the
putative father and the mother of the dependent child shall constitute an
admission of paternity and shall have the same legal effect as a judgment
of paternity for the purpose of establishing a child support obligation,
subject to the right of either signatory to rescind within the earlier
of:
(1) 60 days of the date the document is executed, or
(2) The date of entry of an order establishing paternity or an order
for the payment of child support.
In order to rescind, a challenger must request the district court to
order the rescission and to include in the order specific findings of
fact that the request for rescission was filed with the clerk of court
within 60 days of the signing of the document. The court must also find
that all parties, including the child support enforcement agency, if
appropriate, have been served in accordance with Rule 4 of the North
Carolina Rules of Civil Procedure. In the event the court orders
rescission and the putative father is thereafter found not to be the
father of the child, then the clerk of court shall send a copy of the
order of rescission to the State Registrar of Vital Statistics. Upon
receipt of an order of rescission, the State Registrar shall remove the
putative father's name from the birth certificate. In the event that the
putative father defaults or fails to present or prosecute the issue of
paternity, the trial court shall find the putative father to be the
biological father as a matter of law.
After 60 days have elapsed, execution of the document may be challenged
in court only upon the basis of fraud, duress, mistake, or excusable
neglect. The burden of proof shall be on the challenging party, and the
legal responsibilities, including child support obligations, of any
signatory arising from the executed documents may not be suspended during
the challenge except for good cause shown.
A written agreement to support the child by periodic payments, which
may include provision for reimbursement for medical expenses incident to
the pregnancy and the birth of the child, accrued maintenance and
reasonable expense of prosecution of the paternity action, when
acknowledged as provided herein, filed with, and approved by a judge of
the district court at any time, shall have the same force and effect as
an order of support entered by that court, and shall be enforceable and
subject to modification in the same manner as is provided by law for
orders of the court in such cases. The written affidavit shall contain
the social security number of the person executing the affidavit.
Voluntary agreements to support shall contain the social security number
of each of the parties to the agreement. The written affidavits and
agreements to support shall be sworn to before a certifying officer or
notary public or the equivalent or corresponding person of the state,
territory, or foreign country where the affirmation, acknowledgment, or
agreement is made, and shall be binding on the person executing the same
whether the person is an adult or a minor. The child support enforcement
agency shall ensure that the mother and putative father are given oral
and written notice of the legal consequences and responsibilities arising
from the signing of an affidavit of parentage and of any alternatives to
the execution of an affidavit of parentage. The mother shall not be
excused from making the affidavit on the grounds that it may tend to
disgrace or incriminate her; nor shall she thereafter be prosecuted for
any criminal act involved in the conception of the child as to whose
paternity she attests.
(b) At any time after the filing with the district court of an
affidavit of parentage, upon the application of any interested party, the
court or any judge thereof shall cause a summons signed by him or by the
clerk or assistant clerk of superior court, to be issued, requiring the
putative father to appear in court at a time and place named therein, to
show cause, if any he has, why the court should not enter an order for
the support of the child by periodic payments, which order may include
provision for reimbursement for medical expenses incident to the pregnancy
and the birth of the child, accrued maintenance and reasonable expense of
the action under this subsection on the affidavit of parentage previously
filed with said court. The court may order the responsible parents in a
IV-D establishment case to perform a job search, if the responsible
parent is not incapacitated. This includes IV-D cases in which the
responsible parent is a noncustodial mother or a noncustodial father
whose affidavit of parentage has been filed with the court or when
paternity is not at issue for the child. The court may further order the
responsible parent to participate in the work activities, as defined in
42 U.S.C.§607, as the court deems appropriate. The amount of child
support payments so ordered shall be determined as provided in G.S.
50-13.4 (c). The prior judgment as to paternity shall be res judicata as
to that issue and shall not be reconsidered by the court.
§ 49-4. When prosecution may be commenced.
The prosecution of the reputed father of an illegitimate child may be
instituted under this Chapter within any of the following periods, and
not thereafter:
(1) Three years next after the birth of the child; or
(2) Where the paternity of the child has been judicially determined
within three years next after its birth, at any time before the child
attains the age of 18 years; or
(3) Where the reputed father has acknowledged paternity of the child by
payments for the support thereof within three years next after the birth
of such child, three years from the date of the last payment whether such
last payment was made within three years of the birth of such child or
thereafter: Provided, the action is instituted before the child attains
the age of 18 years.
The prosecution of the mother of an illegitimate child may be
instituted under this Chapter at any time before the child attains the
age of 18 years.
§ 49-10. Legitimation.
The putative father of any child born out of wedlock, whether such
father resides in North Carolina or not, may apply by a verified written
petition, filed in a special proceeding in the superior court of the
county in which the putative father resides or in the superior court of
the county in which the child resides, praying that such child be
declared legitimate. The mother, if living, and the child shall be
necessary parties to the proceeding, and the full names of the father,
mother and the child shall be set out in the petition. A certified copy
of a certificate of birth of the child shall be attached to the
petition. If it appears to the court that the petitioner is the father of
the child, the court may thereupon declare and pronounce the child
legitimated; and the full names of the father, mother and the child shall
be set out in the court order decreeing legitimation of the child. The
clerk of the court shall record the order in the record of orders and
decrees and it shall be cross-indexed under the name of the father as
plaintiff or petitioner on the plaintiff's side of the cross-index, and
under the name of the mother, and the child as defendants or respondents
on the defendants' side of the cross-index.
§ 49-11. Effects of legitimation.
The effect of legitimation under G.S. 49-10 shall be to impose upon the
father and mother all of the lawful parental privileges and rights, as
well as all of the obligations which parents owe to their lawful issue,
and to the same extent as if said child had been born in wedlock, and to
entitle such child by succession, inheritance or distribution, to take
real and personal property by, through, and from his or her father and
mother as if such child had been born in lawful wedlock. In case of death
and intestacy, the real and personal estate of such child shall descend
and be distributed according to the Intestate Succession Act as if he had
been born in lawful wedlock.
§ 49-12.1. Legitimation when mother married.
(a) The putative father of a child born to a mother who is married to
another man may file a special proceeding to legitimate the child. The
procedures shall be the same as those specified by G.S.49-10, except that
the spouse of the mother of the child shall be a necessary party to the
proceeding and shall be properly served. A guardian ad litem shall be
appointed to represent the child if the child is a minor.
(b) The presumption of legitimacy can be overcome by clear and
convincing evidence.
(c) The parties may enter a consent order with the approval of the
clerk of superior court. The order entered by the clerk shall find the
facts and declare the proper person the father of the child and may
change the surname of the child.
(d) The effect of legitimation under this section shall be the same as
provided by G.S. 49-11.
(e) A certified copy of the order of legitimation under this section
shall be sent by the clerk of superior court under his official seal to
the State Registrar of Vital Statistics who shall make a new birth
certificate bearing the full name of the father of the child and, if
ordered by the clerk, changing the surname of the child.
§ 49-13. New birth certificate on legitimation.
A certified copy of the order of legitimation when issued under the
provisions of G.S. 49-10 shall be sent by the clerk of the superior court
under his official seal to the State Registrar of Vital Statistics who
shall then make the new birth certificate bearing the full name of the
father, and change the surname of the child so that it will be the same
as the surname of the father.
When a child is legitimated under the provisions of G.S. 49-12, the
State Registrar of Vital Statistics shall make a new birth certificate
bearing the full name of the father upon presentation of a certified copy
of the certificate of marriage of the father and mother and change the
surname of the child so that it will be the same as the surname of the
father.
§ 49-14. Civil action to establish paternity.
(a) The paternity of a child born out of wedlock may be established by
civil action at any time prior to such child's eighteenth birthday. A
copy of a certificate of birth of the child shall be attached to the
complaint. The establishment of paternity shall not have the effect of
legitimation. The social security numbers, if known, of the minor child's
parents shall be placed in the record of the proceeding.
(b) Proof of paternity pursuant to this section shall be by clear,
cogent, and convincing evidence.
(c) No such action shall be commenced nor judgment entered after the
death of the putative father, unless the action is commenced either:
(1) Prior to the death of the putative father;
(2) Within one year after the date of death of the putative father, if
a proceeding for administration of the estate of the putative father has
not been commenced within one year of his death; or
(3) Within the period specified in G.S. 28A-19-3(a) for presentation of
claims against an estate, if a proceeding for administration of the
estate of the putative father has been commenced within one year of his
death.
Any judgment under this subsection establishing a decedent to be the
father of a child shall be entered nunc pro tunc to the day preceding the
date of death of the father.
(d) If the action to establish paternity is brought more than three
years after birth of a child or is brought after the death of the
putative father, paternity shall not be established in a contested case
without evidence from a blood or genetic marker test.
(e) Either party to an action to establish paternity may request that
the case be tried at the first session of the court after the case is
docketed, but the presiding judge, in his discretion, may first try any
pending case in which the rights of the parties or the public demand it.
(f) When a determination of paternity is pending in a IV-D case, the
court shall enter a temporary order for child support upon motion and
showing of clear, cogent, and convincing evidence of paternity. For
purposes of this subsection, the results of blood or genetic tests shall
constitute clear, cogent, and convincing evidence of paternity if the
tests show that the probability of the alleged parent's parentage is
ninety-seven percent (97%) or higher. If paternity is not thereafter
established, then the putative father shall be reimbursed the full amount
of temporary support paid under the order.
(g) Invoices for services rendered for pregnancy, childbirth, and blood
or genetic testing are admissible as evidence without requiring third
party foundation testimony and shall constitute prima facie evidence of
the amounts incurred for the services or for testing on behalf of the
child.
§ 49-15. Custody and support of illegitimate children when paternity
established.
Upon and after the establishment of paternity of an illegitimate child
pursuant to G.S. 49-14, the rights, duties, and obligations of the mother
and the father so established, with regard to support and custody of the
child, shall be the same, and may be determined and enforced in the same
manner, as if the child were the legitimate child of such father and
mother. When paternity has been established, the father becomes
responsible for medical expenses incident to the pregnancy and the birth
of the child.
§ 49-16. Parties to proceeding.
Proceedings under this Article may be brought by:
(1) The mother, the father, the child, or the personal representative
of the mother or the child.
(2) When the child, or the mother in case of medical expenses, is
likely to become a public charge, the director of social services or such
person as by law performs the duties of such official,
a. In the county where the mother resides or is found,
b. In the county where the putative father resides or is found, or
c. In the county where the child resides or is found.
§ 130A-101. Birth registration.
(a) A certificate of birth for each live birth, regardless of the
gestation period, which occurs in this State shall be filed with the
local registrar of the county in which the birth occurs within 10 days
after the birth and shall be registered by the registrar if it has been
completed and filed in accordance with this Article and the rules.
(b) When a birth occurs in a hospital or other medical facility, the
person in charge of the facility shall obtain the personal data, prepare
the certificate, secure the signatures required by the certificate and
file it with the local registrar within five days after the birth. The
physician or other person in attendance shall provide the medical
information required by the certificate.
(c) When a birth occurs outside a hospital or other medical facility,
the certificate shall be prepared and filed by one of the following in
the indicated order of priority:
(1) The physician in attendance at or immediately after the birth, or
in the absence of such a person;
(2) Any other person in attendance at or immediately after the birth,
or in the absence of such a person;
(3) The father, the mother or, in the absence or inability of the
father and the mother, the person in charge of the premises where the
birth occurred.
(d) When a birth occurs on a moving conveyance and the child is first
moved from the conveyance in this State, the birth shall be registered in
the county where the child is first removed from the conveyance, and that
place shall be considered the place of birth.
(e) If the mother was married at the time of either conception or
birth, or between conception and birth, the name of the husband shall be
entered on the certificate as the father of the child, unless paternity
has been otherwise determined by a court of competent jurisdiction, in
which case the name of the father as determined by the court shall be
entered. The surname of the child shall be the same as that of the
husband, except that upon agreement of the husband and mother, or upon
agreement of the mother and father if paternity has been otherwise
determined, any surname may be chosen.
(f) If the mother was unmarried at all times from date of conception
through date of birth, the name of the father shall not be entered on the
certificate unless the child's mother and father complete an affidavit
acknowledging paternity which contains the following:
(1) A sworn statement by the mother consenting to the assertion of
paternity by the father and declaring that the father is the child's
natural father;
(2) A sworn statement by the father declaring that he believes he is
the natural father of the child;
(3) Information explaining in plain language the effect of signing the
affidavit, including a statement of parental rights and responsibilities
and an acknowledgment of the receipt of this information; and
(4) The social security numbers of both parents.
The State Registrar, in consultation with the Child Support Enforcement
Section of the Division of Social Services, shall develop and disseminate
a form affidavit for use in compliance with this section, together with
an information sheet that contains all the information required to be
disclosed by subdivision (3) of this subsection.
Upon the execution of the affidavit, the declaring father shall be
listed as the father on the birth certificate, subject to the declaring
father's right to rescind under G.S. 110-132. The executed affidavit
shall be filed with the registrar along with the birth certificate. In
the event paternity is properly placed at issue, a certified copy of the
affidavit shall be admissible in any action to establish paternity The
surname of the child shall be determined by the mother, except if the
father's name is entered on the certificate, the mother and father shall
agree upon the child's surname. If there is no agreement, the child's
surname shall be the same as that of the mother.
The execution and filing of this affidavit with the registrar does not
affect rights of inheritance unless the affidavit is also filed with the
clerk of court in accordance with G.S. 29-19 (b)(2).
(g) Each parent shall provide his or her social security number to the
person responsible for preparing and filing the certificate of birth.
§ 130A-118. Amendment of birth and death certificates.
(a) After acceptance for registration by the State Registrar, no record
made in accordance with this Article shall be altered or changed, except
by a request for amendment. The State Registrar may adopt rules governing
the form of these requests and the type and amount of proof required.
(b) A new certificate of birth shall be made by the State Registrar
when:
(1) Proof is submitted to the State Registrar that the previously unwed
parents of a person have intermarried subsequent to the birth of the
person;
(2) Notification is received by the State Registrar from the clerk of a
court of competent jurisdiction of a judgment, order or decree disclosing
different or additional information relating to the parentage of a
person;
(3) Satisfactory proof is submitted to the State Registrar that there
has been entered in a court of competent jurisdiction a judgment, order
or decree disclosing different or additional information relating to the
parentage of a person; or
(4) A written request from an individual is received by the State
Registrar to change the sex on that individual's birth record because of
sex reassignment surgery, if the request is accompanied by a notarized
statement from the physician who performed the sex reassignment surgery
or from a physician licensed to practice medicine who has examined the
individual and can certify that the person has undergone sex reassignment
surgery.
(c) A new birth certificate issued under subsection (b) may reflect a
change in surname when:
(1) A child is legitimated by subsequent marriage and the parents agree
and request that the child's surname be changed; or
(2) A child is legitimated under G.S. 49-10 and the parents agree and
request that the child's surname be changed, or the court orders a change
in surname after determination that the change is in the best interests
of the child.
(d) For the amendment of a certificate of birth or death after its
acceptance for filing, or for the making of a new certificate of birth
under this Article, the State Registrar shall be entitled to a fee not to
exceed fifteen dollars ($15.00) to be paid by the applicant.
(e) When a new certificate of birth is made, the State Registrar shall
substitute the new certificate for the certificate of birth then on
file, and shall forward a copy of the new certificate to the register of
deeds of the county of birth. The copy of the certificate of birth on
file with the register of deeds, if any, shall be forwarded to the State
Registrar within five days. The State Registrar shall place under seal
the original certificate of birth, the copy forwarded by the register of
deeds and all papers relating to the original certificate of birth. The
seal shall not be broken except by an order of a court of competent
jurisdiction. Thereafter, when a certified copy of the certificate of
birth of the person is issued, it shall be a copy of the new certificate
of birth, except when an order of a court of competent jurisdiction shall
require the issuance of a copy of the original certificate of birth.
§ 8-57.2. Presumed father or mother as witnesses where paternity at
issue.
Whenever an issue of paternity of a child born or conceived during a
marriage arises in any civil or criminal proceeding, the presumed father
or the mother of such child is competent to give evidence as to any
relevant matter regarding paternity of the child, including nonaccess to
the present or former spouse, regardless of any privilege which may
otherwise apply. No parent offering such evidence shall thereafter be
prosecuted based upon that evidence for any criminal act involved in the
conception of the child whose paternity is in issue and/or for whom
support is sought, except for perjury committed in this testimony.