Legitimation of Children in North Carolina

April 27th, 2017

A child born in North Carolina to unmarried parents does not have the same legal rights and privileges with regard to the biological father as a child born to married parents. A specific law establishes a procedure to ensure that the child has those privileges (NC General Statutes, Ch. 49, Art. 2). The statutory process is called "legitimation." It is also sometimes referred to as "legitimization."

There are two situations in which a legitimation petition can be filed to provide full rights and privileges for a child born to unmarried parents:

The child's parents were not married when the child was born and did not marry after the birth.The child’s mother was married to a person other than the child’s biological father when the child was born.

In either situation, the child’s biological father — and only the child’s father — can bring an action in court to have the child declared legitimate. The father can file a legitimation petition at any time, even after the child is an adult. The child and the child's mother, if living, are parties to the proceeding. If the mother is married to another person, that person is also a party to the action.

There is one situation in which a legitimation action is not necessary: If unmarried biological parents of a child get married after the child is born, the child automatically is legitimate without any court proceeding.

Effect of Legitimation

A legitimation order confers on the child all the same rights and privileges of a child born to a married couple. In the absence of legitimation, a child born to unmarried parents would not have those rights.

Those rights include:

the ability to inherit, which would be especially important if the father dies without a willthe right to sue for wrongful death of the father

In addition, after legitimation, the father of the child has the same parental legal privileges, rights, and obligations as the mother. Those rights include the father’s ability to inherit from the child, or to bring an action in the event of the child’s wrongful death.

Following legitimation, vital records, including the child’s birth certificate, are updated to show the name of the child’s father. While the statute permits the child’s surname to be changed on the birth certificate at the same time, North Carolina courts have determined that the mother must consent to the name change.

Legitimation Is Not the Same as Paternity

Legitimation and paternity are completely different and separate legal proceedings. A legitimation petition is about the status of the child, even though it also affects the privileges, rights, and obligations of the father. After a child is legitimated, paternity is no longer an issue. A paternity action addresses the status of the father as the biological parent of the child. Establishing paternity does not legitimate a child.

The differences between legitimation and paternity include:

- Legitimation is a civil proceeding.

- Paternity can be either civil action to establish parentage or a criminal action for nonsupport.

- Only the biological father can file a legitimation petition.

- A civil paternity action can be filed by the father, mother, child, or personal representative of the child or mother.

- A criminal paternity action can be filed by the mother, the state, or the county department of social services where the mother resides.

- A legitimation petition can be filed at any time during the child’s life.

- There are time limits on filing paternity actions; the limit varies with case-specific circumstances.

- A legitimation petition can only be filed by the father during his life.

- In some circumstances, a paternity action can be commenced after the father’s death.

- A paternity action does not legitimize a child.

- In contrast, paternity is no longer an issue after a legitimation proceeding, since the father acknowledges paternity in the legitimation petition.