As a well-known Raleigh family attorney in North Carolina, I am often asked when a baby is born outside of a marriage, if the child is presumed not to have a legal father.
Obviously every child conceived has a father somewhere, however I am speaking from the prospective of having a legal obligation. Legal obligations include the duty to provide support and the right to have custody or visitation.
If a child is born and the mother is married, the law presumes her husband is the father—which may or may not be the case.
Questions we commonly get include, “If we aren’t married, how do I get on the birth certificate?” “If my wife/girlfriend lied to me and I am not the father, what are my options?” “Once I am on the birth certificate is it possible to be removed?
Getting on the birth certificate/becoming the legal father is a relatively easy process if done right at the child’s birth. The father of the child can sign an “Affidavit of Parentage.” An Affidavit of Parentage is a voluntary admission of paternity made by the parents of a child. This has the same legal effect as an order of paternity, unless the admission of paternity is rescinded by either parent.
In other words, the person signing the Affidavit of Parentage has the presumptive right to child custody and child visitation and the obligation to provide support (unless a court order says otherwise). That is why people should be cautious and aware of what they are signing up for when they sign an Affidavit of Parentage.
However, if you do sign an Affidavit of Parentage and later learn that the child is not yours there is a way to have the Affidavit set aside. An Affidavit of Parentage can be set aside under certain circumstances. Specifically, it can be set aside for fraud, duress, mutual mistake, or excusable neglect.
There must also be genetic tests that show the person that signed the Affidavit of Parentage is not the biological father of the child. The burden of proof rests on the individual asking the court to set aside the Affidavit of Parentage. Simply not being the biological father is not enough to set aside the Affidavit of Parentage, there still must be fraud, duress, mutual mistake, or excusable neglect when someone signed the Affidavit of Parentage.
If the court grants your motion to set aside an Affidavit of Parentage, the legal effect is that you are no longer the child’s legal father. It is important to be aware that this is something the courts rarely do. This means that you have no rights to have custody or visitation of the child on the basis of being a parent and you are not required to pay child support.
If you already have a child support order in place before filing a motion to set aside the Affidavit of Parentage, this will also need to be set aside or vacated. Further, the rights to inheritance (outside of having a will) are also affected, as you and the child are no longer in the same (legal) familial line.
Generally, when filing a motion to set aside the Affidavit of Parentage, a certified copy of the Affidavit of Parentage and the child’s birth certificate will need to be attached. The Affidavit of Parentage can be obtained from NC Vital Records and generally birth certificates can be obtained at the register of deeds office where the child was born.
This is something you can do on your own or an attorney can request them for you.
If you have questions about setting aside an Affidavit of Parentage our attorneys can help!
Call Kurtz & Blum, PLLC at 919-832-7700 today.
