ARTICLE 1. Support of Children Born Out of Wedlock.

Sec.

§ 49-1. Title.

This Article shall be referred to as "An act concerning the support of children of parents not married to each other."

History

(1933, c. 228, s. 11.)

Cross References. - As to the duty of special county attorneys to assist with the preparation and prosecution of proceedings authorized by this Chapter, see G.S. 108A-18(a)(5).

Legal Periodicals. - For comment on this Article, see 28 N.C.L. Rev. 119 (1950).

For note on illegitimacy in North Carolina, see 46 N.C.L. Rev. 813 (1968).

For 1984 survey, "Intestate Succession of Illegitimate Children in North Carolina," see 63 N.C.L. Rev. 1274 (1985).

For article, "Surrogate Parenthood: Finding a North Carolina Solution," see 18 N.C. Cent. L.J. 1 (1989).

For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

For comment, " "If Doubt Arises': How the Department of State's Interpretation of the Immigration and Naturalization Act Invites Discrimination Against the Children of Gay and Lesbian Americans," see 42 Campbell L. Rev. 119 (2020).

For article, "For the Sake of the Child: Parental Recognition in the Age of Assisted Reproductive Technology A Framework for North Carolina,” see 43 Campbell L. Rev. 21 (2021).

CASE NOTES

"Parents". - The word "parents" in this section and the word "parent" in G.S. 49-2 relate to the rights and duties of parents in respect to their children and are in pari materia. Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592 (1955).

Defendants' Plea of Guilty to Criminal Charge of Nonsupport Established Paternity. - Court of Appeals determination, as to whether defendant's 1974 plea of guilty to criminal charge of nonsupport must be given collateral estoppel effect, was unnecessary; uncontroverted evidence of defendant's plea of guilty to a criminal charge of nonsupport of minor child was sufficient to establish paternity so as to bring defendant within the definition of "responsible parent" under G.S. 110-129. Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984).

Cited in State v. Dill, 224 N.C. 57, 29 S.E.2d 145 (1944); State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655 (1951); Wake County ex rel Estate of Lucas v. Jarrett, 55 N.C. App. 185, 284 S.E.2d 711 (1981); Wake County ex rel. Denning v. Ferrell, 71 N.C. App. 185, 321 S.E.2d 913 (1984); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010); In re Estate of Williams, 246 N.C. App. 76, 783 S.E.2d 253 (2016).


§ 49-2. Nonsupport of child born out of wedlock by parents made misdemeanor.

Any parent who willfully neglects or who refuses to provide adequate support and maintain his or her child born out of wedlock shall be guilty of a Class 2 misdemeanor. A child within the meaning of this Article shall be any person less than 18 years of age and any person whom either parent might be required under the laws of North Carolina to support and maintain if the child were the legitimate child of the parent.

History

(1933, c. 228, s. 1; 1937, c. 432, s. 1; 1939, c. 217, ss. 1, 2; 1951, c. 154, s. 1; 1977, c. 3, s. 1; 1993, c. 539, s. 414; 1994, Ex. Sess., c. 24, s. 14(c); 2013-198, s. 17.)

Cross References. - As to competency of blood tests in determining issue of parentage, see G.S. 8-50.1 and G.S. 49-7.

As to competency of presumed father or mother to testify where paternity is at issue, see G.S. 8-57.2.

For criminal provisions relating to protection of the family, see G.S. 14-322 et seq.

For provision as to when the offense of failure to support one's illegitimate child is deemed committed in this State, see G.S. 14-325.1.

Effect of Amendments. - Session Laws 2013-198, s. 17, effective June 26, 2013, substituted "child born out of wedlock" for "illegitimate child" in the section heading and in the first sentence of this section; and twice substituted "the" for "such" near the end of the last sentence.

Legal Periodicals. - As to criminal nature of proceedings and extradition of defendant therein, see 11 N.C.L. Rev. 191 (1933).

As to application of Article to both father and mother, see 11 N.C.L. Rev. 205 (1933).

For note concerning this Chapter, see 22 N.C.L. Rev. 250 (1944).

For discussion of problems arising under this Article, see 26 N.C.L. Rev. 305 (1948).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under the law pertaining to children born out of wedlock as it stood prior to its revision by Public Laws 1933, c. 228.

Constitutionality. - This section does not violate due process of law or impose imprisonment but by the law of the land. State v. Spillman, 210 N.C. 271, 186 S.E. 322 (1936).

Purpose. - The object of the Bastardy Act was to shift the burden of maintaining the child from the innocent many to the guilty one. State v. Roberts, 32 N.C. 350 (1849).

The sole aim of the proceeding is to ascertain the paternity of the child, to impose upon the father the burden of its support, such as he would incur if it were his lawful instead of his illegitimate offspring, and to save the county the expense of the child's maintenance. State v. Collins, 85 N.C. 511 (1881). See also, State v. Robeson, 24 N.C. 46 (1841); State v. Brown, 46 N.C. 129 (1853); Ward v. Bell, 52 N.C. 79 (1859); State ex rel. Clements v. Durham's Adm'rs, 52 N.C. 100 (1859).

The primary purpose of prosecution under the provisions of this section is to insure that the parent does not willfully neglect or refuse to support his or her illegitimate child. State v. Green, 8 N.C. App. 234, 174 S.E.2d 8, aff'd, 277 N.C. 188, 176 S.E.2d 756 (1970).

The purpose of this section is not to confer rights upon either the mother or the father, but to protect the child and to protect the State against the child's becoming a public charge. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

This Article is not primarily to benefit illegitimate children, but to prevent them from becoming public charges. Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

Legislative Purpose is Social in Nature. - The duty of a putative father to support his illegitimate child was not created primarily for the benefit of the child. The legislation is social in nature and was enacted to prevent illegitimate children from becoming public charges. The benefit to the child is incidental. Such rights as it may have must be enforced under this section and in accordance with the procedure therein prescribed. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E.2d 18 (1949).

Limitation on Prosecutions for Failure to Support Illegitimate Children Upheld. - The three-year statute of limitations contained in G.S. 49-4(1) for prosecutions under this section does not violate the equal protection clause of the federal Constitution on grounds that it prescribes a limitations period for the prosecution of persons who willfully fail to support their illegitimate children, while there is no limitations period for the prosecution under G.S. 14-322(d) of persons who willfully fail to support their legitimate children. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

For a history of this section, see State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

As to applicability of former law to married women, see Wilkie v. West, 5 N.C. 319 (1809); State v. Pettaway, 10 N.C. 623 (1825); State v. Wilson, 32 N.C. 131 (1849); State v. Allison, 61 N.C. 346 (1867); State v. Liles, 134 N.C. 735, 47 S.E. 750 (1904).

"Parent". - The word "parent" in this section and the word "parents" in G.S. 49-1 relate to the rights and duties of parents in respect to their children, and are in pari materia. Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592 (1955).

Section Renders Moral Obligation Legal and Enforceable. - At common law, the father of an illegitimate child was under no legal obligation to support it. However, the father of an illegitimate child is under a natural and moral duty to support the child. This section makes this moral obligation of the father legal and enforceable, and our courts should enforce it where the father is subject to their jurisdiction. State v. Tickle, 238 N.C. 206, 77 S.E.2d 632 (1953), cert. denied, 346 U.S. 938, 74 S. Ct. 378, 98 L. Ed. 426 (1954).

The natural obligation of the father to support will be enforced under the statute recognizing the obligation and imposing the duty. Burton v. Burton, 142 N.C. 151, 55 S.E. 71 (1906); Allen v. Hunnicutt, 230 N.C. 49, 52 S.E.2d 18 (1949).

All men have a moral duty to support their children, whether legitimate or illegitimate, and this section makes this moral obligation legal and enforceable with respect to illegitimate children. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

A person may be convicted for nonsupport of his illegitimate children only under this section. State v. Caudill, 68 N.C. App. 268, 314 S.E.2d 592 (1984).

Prosecution of a parent for willful nonsupport under this section is a criminal proceeding. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

This is a criminal statute. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

State's right to proceed under this section does not require consent of the mother or of the child, however important to its case may be the mother's cooperation as a witness. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

As to whether bastardy proceedings under the former law were criminal or civil in their nature, see State v. Roberts, 32 N.C. 350 (1849); State v. Edwards, 110 N.C. 511, 14 S.E. 741 (1892); State v. Ostwalt, 118 N.C. 1208, 24 S.E. 660 (1896); State v. Liles, 134 N.C. 735, 47 S.E. 750 (1904); State v. Addington, 143 N.C. 683, 57 S.E. 398 (1907); State v. McDonald, 152 N.C. 802, 67 S.E. 762 (1910); State v. Currie, 161 N.C. 275, 76 S.E. 694 (1912); Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490 (1914); Payne v. Thomas, 176 N.C. 401, 97 S.E. 212 (1918); State v. Carnegie, 193 N.C. 467, 137 S.E. 308 (1927).

The old Bastardy Act was repealed in toto by Public Laws 1933, c. 228, the provisions of s. 2 that the act should not affect pending litigation or accrued actions being repugnant to the specific repealing clause of s. 9, and in a prosecution under the Act of 1933 a demurrer on the grounds that proceedings under the old Bastardy Act were then pending would be overruled. See State v. Morris, 208 N.C. 44, 179 S.E. 19 (1935), holding that the Act of 1933 was intended to cover the entire subject dealing with bastardy.

Proceeding Under Former Law Would Not Bar Proceeding Under Present Statute. - Bastardy proceedings against defendant under C.S., G.S. 265, et seq., repealed by Public Laws 1933, c. 228, s. 9, being civil, would not support a plea of former jeopardy in a prosecution under this and the following sections for willful failure to support an illegitimate child. State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934).

Offense Punishable After Effective Date of Section Although Child Born Before. - A parent may be prosecuted under this section for willful failure to support his illegitimate child begotten and born before the effective date of the statute, the offense being the willful failure to support an illegitimate child, and it being sufficient if such willful failure occur after the effective date of the statute. State v. Parker, 209 N.C. 32, 182 S.E. 723 (1935).

Time Child Was Begotten Is Immaterial. - A defendant may be prosecuted under this statute for willful failure to support his illegitimate child born after the passage of the act, even though the child was begotten before the effective date of the statute, and defendant's contention that in regard to such prosecution the statute is ex post facto cannot be sustained, since the offense is the willful failure to support the child, and the time it was begotten is immaterial. State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934), followed in State v. Morris, 208 N.C. 44, 179 S.E. 19 (1935).

This Article does not require the continued life of the child as the basis for a prosecution under this section, and the death of the child does not abate or prevent a prosecution against the father of an illegitimate for his willful failure to support and maintain the child prior to its death. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Even If Blood Test Is Made Impossible. - When the death of the child makes a blood test impossible, the situation is analogous to that which occurs when an eyewitness to events constituting the basis for an indictment dies before the accused has interviewed him or taken his deposition, and it would hardly be suggested that to try the defendant after the death of that witness would deprive him of due process and that therefore the prosecution must be dismissed. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

To hold that a prosecution under this section must be dismissed when the death of the child deprives the defendant of a blood test would be to attach to the test a significance which the legislature failed to give it. Even when a blood grouping test demonstrates nonpaternity the law does not make the test conclusive of that issue. A fortiori, the absence of a test which, if made, would provide one falsely accused only an even chance to prove his nonpaternity, should not result in a dismissal of the action. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970). But see G.S. 8-50.1 and G.S. 49-7, as to competency of blood tests.

This section creates a continuing offense. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952); State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953); State v. Perry, 241 N.C. 119, 84 S.E.2d 329 (1954); State v. Coppedge, 244 N.C. 590, 94 S.E.2d 569 (1956); State v. Smith, 246 N.C. 118, 97 S.E.2d 442 (1957); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964); State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968); State v. Garner, 34 N.C. App. 498, 238 S.E.2d 653 (1977); State v. Killian, 61 N.C. App. 155, 300 S.E.2d 257 (1983).

Each Day Constitutes a Separate Offense. - A continuing offense is a new violation of the law. Each day during which it is continued constitutes a separate offense and will support a separate prosecution, provided the warrant or indictment alleges separate and distinct times during which the offense was committed. State v. Killian, 61 N.C. App. 155, 300 S.E.2d 257 (1983).

Prior Prosecution Does Not Bar Prosecution for Subsequent Offense. - Defendant was convicted and served the sentence imposed for willfully failing and refusing to support his illegitimate child under this and the following sections. After completion of his term, defendant still willfully failed and refused to support the child, and this prosecution was instituted for breach of this and the following sections subsequent to his release. Defendant entered a plea of former jeopardy. It was held that the violation of the statute constituted a continuing offense, and the prior prosecution was not a bar to a prosecution for breach of the statute for the period subsequent to defendant's release from the imprisonment imposed in the first prosecution. State v. Johnson, 212 N.C. 566, 194 S.E. 319 (1937).

A new warrant may be filed charging defendant with nonsupport, if such has occurred after the issuance of the warrant on which he has been tried. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968).

The criminal offense of willful nonsupport of an illegitimate child by a parent of the child may be repeated, and if it is, prosecution for the subsequent offense will not be barred by the prosecution for the former offense on the theory of double jeopardy. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

A previous acquittal on a charge of willful nonsupport does not bar a subsequent prosecution, because this section creates a continuing offense. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

G.S. 49-14 Compared. - The issue of paternity is the entire thrust of the civil action under G.S. 49-14, whereas the focus of the crime punishable by this section is the willful failure to pay support for an illegitimate child, not paternity, because this section does not make the mere begetting of a child a crime. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

Effect of Prosecution upon Subsequent Civil Proceedings to Establish Paternity. - Since the parties to a previous criminal proceeding under this section and civil proceedings under G.S. 49-14 are not the same, and the State and the present plaintiff were not in privity, the defendant was not estopped in a civil action to deny paternity. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

A judgment of acquittal in a criminal prosecution under this section for willful failure to support two illegitimate children was not res judicata in county's civil action under G.S. 49-14 to establish defendant's paternity of the two children, where the criminal judgment merely stated that defendant was found not guilty and did not disclose whether an acquittal was entered because the judge found that defendant was not the father of the children or because he did not believe that defendant had willfully failed to provide for their reasonable support, as there was thus no showing on the record that the issue of paternity had been previously adjudicated in defendant's favor. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

General verdict of not guilty, upon charges of willful neglect and refusal to provide adequate support of an illegitimate child, did not operate as res judicata on the issue of paternity in subsequent action to establish paternity and require support of an illegitimate child. Sampson County ex rel. Child Support Enforcement Agency ex rel. McPherson v. Stevens, 91 N.C. App. 524, 372 S.E.2d 340 (1988).

Liability of Nonresident Who Begot Child in Another State. - Where defendant, a resident of another state, begot an illegitimate child in such other state, and the mother moved to this State before the child was born, and the mother and child continued to reside in this State from the time of the birth, the offense of willful failure and refusal to support the child was committed in this State, and defendant was constructively in this State when the offense was committed, since he had voluntarily set in motion the chain of circumstances resulting in the commission of the offense here, and therefore the courts of this State had jurisdiction of the offense. State v. Tickle, 238 N.C. 206, 77 S.E.2d 632 (1953), cert. denied, 346 U.S. 938, 74 S. Ct. 378, 98 L. Ed. 426 (1954), commented on in 32 N.C.L. Rev. 435 (1954).

Jurisdiction. - The district court has exclusive original jurisdiction of misdemeanors, including actions to determine liability of persons for the support of dependents in any criminal proceeding. Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645 (1969).

Violation of this section is a misdemeanor over which the district court has exclusive original jurisdiction. Until a defendant is tried and convicted of this offense in district court and appeals to the superior court for a trial de novo, the superior court has no jurisdiction. State v. Caudill, 68 N.C. App. 268, 314 S.E.2d 592 (1984).

As to sufficiency of summons issued under this section, see State v. Walton, 41 N.C. App. 281, 254 S.E.2d 661 (1979).

Right to Counsel. - For cases formerly holding that a defendant charged under this section was not entitled to appointed counsel as the charge did not involve a serious offense, see State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

In a prosecution for willful failure to support an illegitimate child, the defendant had a constitutional right to be represented by counsel at his trial unless he knowingly and intelligently waived that right, since violation of this section can result in imprisonment. State v. Lee, 40 N.C. App. 165, 252 S.E.2d 225 (1979).

Punishment. - The only punishment authorized by law for the willful failure or neglect to support an illegitimate child is found in G.S. 49-8 and is limited at most to six months in prison. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Applied in State v. Moore, 209 N.C. 44, 182 S.E. 692 (1935); State v. Bradshaw, 214 N.C. 5, 197 S.E. 564 (1938); State v. Moore, 222 N.C. 356, 23 S.E.2d 31 (1942); State v. Wortham, 240 N.C. 132, 81 S.E.2d 254 (1954); State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958); State v. Little, 263 N.C. 130, 139 S.E.2d 8 (1964); State v. Cooke, 268 N.C. 201, 150 S.E.2d 226 (1966); State v. Fowler, 9 N.C. App. 64, 175 S.E.2d 331 (1970); State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970); Wright v. Gann, 27 N.C. App. 45, 217 S.E.2d 761 (1975); Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984).

Cited in State v. Stone, 231 N.C. 324, 56 S.E.2d 675 (1949); State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766 (1961); In re Owenby, 3 N.C. App. 53, 164 S.E.2d 55 (1968); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); Smith v. Burden, 31 N.C. App. 145, 228 S.E.2d 662 (1976); Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980); Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985); Ambrose v. Ambrose, 140 N.C. App. 545, 536 S.E.2d 855 (2000); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010).

II. ELEMENTS OF OFFENSE.

Elements of Offense, Generally. - For a defendant to be found guilty of the criminal offense created by this section, two facts must be established: first, that the defendant is a parent of the illegitimate child in question, who must be a person coming within the definition of a child as set forth in this section; and second, that the defendant has willfully neglected or refused to support and maintain such illegitimate child. In addition, if the defendant is the reputed father, it must be shown that the prosecution has been instituted within one of the time periods provided in G.S. 49-4. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968).

Under the provisions of this section the State must establish two facts in order for the defendant to be found guilty: (1) That the defendant is the parent of the illegitimate child in question and (2) that the defendant has willfully neglected or refused to support and maintain such illegitimate child. State v. Green, 8 N.C. App. 234, 174 S.E.2d 8, aff'd, 277 N.C. 188, 176 S.E.2d 756 (1970); State v. Lynch, 11 N.C. App. 432, 181 S.E.2d 186 (1971); State v. Soloman, 40 N.C. App. 600, 253 S.E.2d 270 (1979); State v. Lambert, 53 N.C. App. 799, 281 S.E.2d 754 (1981).

In a prosecution under this section, the State must prove two things: (1) that the defendant is indeed the parent of the child and (2) that defendant has intentionally neglected or refused to provide reasonable support for the child. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

The requirement that a parent "support and maintain his or her illegitimate child" within the purview of this section is not restricted merely to providing food. It includes the supplying of food, clothing and other necessaries, together with medical assistance reasonably required for the preservation of the health of the child. And this obligation to the child applies even in the case of the newly born baby. State v. Love, 238 N.C. 283, 77 S.E.2d 501 (1953).

The mere begetting of an illegitimate child is not a crime. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968); State v. Ingle, 20 N.C. App. 50, 200 S.E.2d 427 (1973).

The only "prosecution" contemplated by this legislation is that grounded on the willful neglect or refusal of any parent to support and maintain his or her illegitimate child, the mere begetting of the child not being denominated a crime. State v. Dill, 224 N.C. 57, 29 S.E.2d 145 (1944); State v. Stiles, 228 N.C. 137, 44 S.E.2d 728 (1947); State v. Coppedge, 244 N.C. 590, 94 S.E.2d 569 (1956); State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

As the criminal offense is not committed by begetting but by willful nonsupport of the child. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

A man cannot be held criminally liable for failure to support an unborn illegitimate child. State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

Nor is failure of father to pay expenses of mother incident to the birth a criminal offense. State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Ferguson, 243 N.C. 766, 92 S.E.2d 197 (1956); State v. Coppedge, 244 N.C. 590, 94 S.E.2d 569 (1956); State v. Ingle, 20 N.C. App. 50, 200 S.E.2d 427 (1973).

Prosecution Is Grounded on Willful Neglect or Refusal to Support Child. - The only prosecution contemplated under this section is that grounded on the willful neglect or refusal of a parent to support his or her illegitimate child. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962); State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968); State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Question of paternity is incidental to the prosecution for nonsupport. State v. Bowser, 230 N.C. 330, 53 S.E.2d 282 (1949); State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952); State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

The question of paternity is merely incidental to the prosecution for nonsupport and involves no punishment. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Paternity Is Preliminary Requisite. - The question of paternity is incidental to the prosecution for the crime of nonsupport - a preliminary requisite to conviction. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

Willfulness Is Essential Element of Offense. - Willfulness is an essential element in the crime of failure and refusal to support an illegitimate child. State v. McDay, 232 N.C. 388, 61 S.E.2d 86 (1950).

The father of an illegitimate child may be convicted of neglecting to support such child only when it is established that such neglect was willful, that is, without just cause, excuse or justification. The willfulness of the neglect is an essential ingredient of the offense, and as such must not only be charged in the bill, but must be proven beyond a reasonable doubt. The presumption of innocence with which the defendant enters the trial includes the presumption of innocence of willfulness in any failure on his part to support his illegitimate child. The failure to support may be an evidential fact tending to show a willful neglect, but it does not raise a presumption of willfulness. State v. Cook, 207 N.C. 261, 176 S.E. 757 (1934); State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956); State v. McCoy, 304 N.C. 363, 283 S.E.2d 788 (1981).

Which Must Be Charged in Warrant or Indictment. - Under this section, the neglect or refusal to support an illegitimate child must be willful, and it must be so charged in the warrant or bill of indictment, and the omission of such allegation is fatal. State v. Vanderlip, 225 N.C. 610, 35 S.E.2d 885 (1945); State v. Morgan, 226 N.C. 414, 38 S.E.2d 166 (1946); State v. Moore, 238 N.C. 743, 78 S.E.2d 914 (1953).

The warrant in a prosecution under this and the following sections must allege that the failure or refusal of defendant to support his illegitimate child was willful, and where it does not do so, defendant's motion in arrest of judgment should be allowed. State v. McLamb, 214 N.C. 322, 199 S.E. 81 (1938). See State v. Tarleton, 208 N.C. 734, 182 S.E. 481 (1935); State v. Clarke, 220 N.C. 392, 17 S.E.2d 468 (1941); State v. Sturdivant, 220 N.C. 535, 17 S.E.2d 661 (1941); State v. Coppedge, 244 N.C. 590, 94 S.E.2d 569 (1956); State v. Smith, 246 N.C. 118, 97 S.E.2d 442 (1957).

Proved Beyond Reasonable Doubt. - The willfulness of the neglect is an essential ingredient of the offense, and as such must not only be charged in the bill, but must be proved beyond a reasonable doubt. State v. Spillman, 210 N.C. 271, 186 S.E. 322 (1936); State v. Moore, 238 N.C. 743, 78 S.E.2d 914 (1953).

"Willful" Defined. - The word "willfully," as used in the statute, is used with the same import as in G.S. 14-322, relating to willful abandonment of wife (now spouse). State v. Cook, 207 N.C. 261, 176 S.E. 757 (1934).

The word "willful," as used in this section, means that the act is done purposely and deliberately in violation of the law; it means an act done without any lawful justification, reason or excuse. State v. Stiles, 228 N.C. 137, 44 S.E.2d 728 (1947).

A defendant's willful failure and refusal to support his illegitimate child means an intentional neglect or refusal. State v. McDay, 232 N.C. 388, 61 S.E.2d 86 (1950).

Willful Neglect Must Follow Demand for Support. - In order to support a finding of willful nonsupport of an illegitimate child by the father, the State must prove beyond a reasonable doubt that the mother of the child or, under certain circumstances, the director of social services has, after the child was born and before the prosecution was commenced, made demand upon the father for support, and after such demand and before prosecution, the father willfully neglected and refused to provide adequate support according to his means and condition and the necessities of the child. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Willfulness Not Presumed from Failure to Support. - Construing the word "willful" in light of the decided cases, it is clear that one cannot be brought within the meaning of the statute without proving the criminal intent, and that it is error for the court to charge the jury that if the defendant failed to support his illegitimate child "the presumption is he willfully did so." State v. Cook, 207 N.C. 261, 176 S.E. 757 (1934).

Where a father has failed to pay the child support ordered by the court, he may not be held in contempt of court and imprisoned or punished in any way until a judicial determination has been made as to whether he has failed willfully to comply; willfulness may not be presumed. State v. McCoy, 304 N.C. 363, 283 S.E.2d 788 (1981).

No Presumption of Paternity. - To impose responsibility on a man for the support of an illegitimate child, it must first be established that he is the father of the child. The Act of 1741 created a conclusive presumption from the oath of the mother. This was modified in 1814 to make a prima facie case by the affidavit or oath of the woman. There is now no presumption from the affidavit or testimony of the mother. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

Burden Is on State to Prove Paternity of Child and Willful Neglect. - It is not necessary that defendant's paternity of the child should first be judicially determined, but the State must prove on the trial, first, defendant's paternity of the child, and then his willful neglect or refusal to support the child. State v. Spillman, 210 N.C. 271, 186 S.E. 322 (1936).

Since the statute raises no presumption against a person accused, the State must overcome the presumption of innocence both as to the willfulness of the neglect to support the illegitimate child and defendant's paternity of the child. State v. Spillman, 210 N.C. 271, 186 S.E. 322 (1936).

In order to convict defendant under this section, the burden is on the State to show not only that he is the father of the child and that he had refused or neglected to support and maintain it, but further, that his refusal or neglect was willful, that is, intentionally done, "without just cause, excuse or justification," after notice and request for support. State v. Hayden, 224 N.C. 779, 32 S.E.2d 333 (1944); State v. Stiles, 228 N.C. 137, 44 S.E.2d 728 (1947); State v. Ellison, 230 N.C. 59, 52 S.E.2d 9 (1949); State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655 (1951); State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953); State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962).

It is as much the duty of the State to establish willful failure to support by evidence showing that fact beyond a reasonable doubt as it is to so establish paternity. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962).

In a prosecution under this section, the burden is upon the State upon defendant's plea of not guilty to prove not only that defendant is the father of the child and had refused or neglected to support the child, but further that his refusal or neglect was willful. State v. Mason, 268 N.C. 423, 150 S.E.2d 753 (1966).

But Paternity Need Not Be Relitigated on Subsequent Prosecution. - Upon a prosecution for a subsequent willful neglect or refusal to support, the accused is not entitled to have the question of paternity relitigated. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964); State v. Garner, 34 N.C. App. 498, 238 S.E.2d 653 (1977), cert. denied, 294 N.C. 184, 241 S.E.2d 519 (1978).

Once the question of paternity has been determined, the accused is not entitled to have the question of paternity relitigated upon a subsequent prosecution for later willful neglect or refusal to support his illegitimate children. State v. Green, 8 N.C. App. 234, 174 S.E.2d 8, aff'd, 277 N.C. 188, 176 S.E.2d 756 (1970).

Upon a subsequent prosecution of an alleged father, the question of paternity, necessarily determined against him in the previous criminal action, need not be relitigated, that question being res judicata. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

Guilty Verdict as Finding of Paternity. - A general verdict of "guilty" or "guilty as charged" to a valid charge of violation of this section is adequate as a finding of paternity. State v. Golden, 40 N.C. App. 37, 251 S.E.2d 875 (1979).

A judgment as of nonsuit in a prosecution under this section does not constitute an adjudication on the issue of paternity and will not support a plea of former acquittal in a subsequent prosecution under the statute, the offense being a continuing one. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952). See also, State v. Perry, 241 N.C. 119, 84 S.E.2d 329 (1954); State v. Ferguson, 243 N.C. 766, 92 S.E.2d 197 (1956).

III. AFFIDAVIT, WARRANT AND INDICTMENT.

.

Affidavit Supporting Warrant Must Name Defendant. - Where, in the affidavit upon which a warrant charging unlawful failure to support an illegitimate child is based, the name of the defendant does not appear, then the warrant does not charge the defendant with a crime, and judgment must be arrested. State v. Satterfield, 8 N.C. App. 597, 174 S.E.2d 640 (1970).

Warrant Must Charge Him with Refusal to Support Child. - The begetting of an illegitimate child is not of itself a crime, and a warrant charging defendant with being the putative father of an unborn, illegitimate child is insufficient to support a prosecution under this statute, nor is such insufficiency cured by an amendment allowing the word "willful" to be inserted therein, in the absence of an amendment alleging the birth of the child and defendant's refusal to support the child. State v. Tyson, 208 N.C. 231, 180 S.E. 85 (1935). See also, State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952); State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953).

Where the warrant upon which defendant was tried was insufficient to charge any crime, defendant's motion in arrest of judgment should have been allowed, since the defect was one appearing on the face of the record. Thus the failure of the warrant to charge defendant with willful failure to support his illegitimate child was not cured by the charge or verdict, where the warrant failed to charge any criminal offense. State v. Tyson, 208 N.C. 231, 180 S.E. 85 (1935).

The charge must be supported by the facts as they existed at the time it was formally laid in the court, and cannot be supported by evidence of willful failure supervening between the time the charge was made and time of trial, at least when the trial is had upon the original warrant. State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655 (1951); State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953); State v. Ingle, 20 N.C. App. 50, 200 S.E.2d 427 (1973); State v. Killian, 61 N.C. App. 155, 300 S.E.2d 257 (1983).

Demand for Support Must Have Been Made Before Warrant Was Drawn. - Where, in a prosecution for willful neglect and refusal to support an illegitimate child, the evidence discloses that no demand for support of the child was made upon defendant until after the warrant was drawn, nonsuit must be entered, since the warrant must be supported by the facts as they existed at the time it was formally laid and cannot be supported by evidence of willful failure thereafter. State v. Perry, 241 N.C. 119, 84 S.E.2d 329 (1954); State v. Ingle, 20 N.C. App. 50, 200 S.E.2d 427 (1973).

Amendment of Warrant. - The trial court has authority to permit the prosecuting attorney to amend a warrant charging defendant with willful failure to support his illegitimate child by inserting the word "maintain," so as to charge his willful failure to support and maintain his illegitimate child. State v. Bowser, 230 N.C. 330, 53 S.E.2d 282 (1949).

Charging of Specific Date in Indictment. - In a prosecution for willful failure and refusal to support an illegitimate child under this and the following sections, an exception on the ground that the indictment failed to charge the specific date in the month in which the offense was alleged to have been committed cannot be sustained. State v. Oliver, 213 N.C. 386, 196 S.E. 325 (1938).

IV. EVIDENCE AND TESTIMONY.

.

Testimony of Prosecutrix That She Wrote Defendant Demanding Support for Child. - In a prosecution under this section, testimony of prosecutrix that she wrote defendant after the baby was born demanding support for it was sufficient upon that question, without introduction of the letter in evidence, since the testimony was sufficient to support the inference that the letter was written before the bill of indictment was laid. State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953).

As to nonadmissibility of testimony of prosecutrix as to nonaccess of husband prior to enactment of G.S. 8-27.2, see State v. Bowman, 230 N.C. 203, 52 S.E.2d 345 (1949).

Cross-Examination as to Failure to Make Blood Test. - It was held competent upon the trial of a prosecution under this section for the prosecuting attorney to ask defendant upon cross-examination if the reason blood test was not made was because defendant knew the baby was his, the matter being within the bounds of a fair cross-examination. The legal principles relating to the purpose and value of a blood test were not relevant upon objection to the cross-examination. State v. Chambers, 238 N.C. 373, 78 S.E.2d 209 (1953).

Evidence Held Sufficient. - Evidence in prosecution of defendant for willful neglect or refusal to support his illegitimate child held sufficient to overrule motions to nonsuit. State v. Bowser, 230 N.C. 330, 53 S.E.2d 282 (1949).

In a prosecution under this section, the evidence was held sufficient to carry the case to the jury. State v. Humphrey, 236 N.C. 608, 73 S.E.2d 479 (1952).

Evidence held sufficient to show failure to support at time warrant was issued. State v. Sharpe, 234 N.C. 154, 66 S.E.2d 655 (1951).

Admission into evidence of a motel guest registration card purportedly bearing the defendant's signature was error requiring a new trial where there was no evidence identifying the handwriting or identifying defendant as either the man who registered under the name appearing on the card or the man to whom a room was assigned, and where it was the only direct evidence, other than the prosecuting witness' testimony, bearing on whether defendant had had intercourse with her. State v. Smith, 59 N.C. App. 732, 297 S.E.2d 771 (1982).

V. INSTRUCTIONS, SUBMISSION TO JURY, AND VERDICT.

.

Instruction as to Willfulness. - Willfulness in refusal to support one's illegitimate child is an essential ingredient of the offense denounced by this section, which must be proven beyond a reasonable doubt; and instructions which fail to so charge deprive defendant of his right to have the jury consider his willfulness as an issuable fact. State v. Hayden, 224 N.C. 779, 32 S.E.2d 333 (1944).

In a prosecution under this section, an instruction defining the term "willfully" as "wrongfully and unjustifiably, without valid and good excuse," instead of as an intentional neglect or refusal, would be held for reversible error. State v. McDay, 232 N.C. 388, 61 S.E.2d 86 (1950).

In a prosecution under this section, an instruction that the jury was to find defendant guilty if it found from the evidence beyond a reasonable doubt that defendant was the father of the child, without submitting the question of whether defendant willfully refused to support the child, constituted prejudicial error. State v. Mason, 268 N.C. 423, 150 S.E.2d 753 (1966).

Failure to Charge as to Necessity of Notice and Demand for Support. - Failure of the court to charge that there was no obligation upon defendant to support the child in question until he had been given notice that he was the father and demand was made upon him for support could not be held prejudicial where there was evidence of notice and demand prior to issuance of the warrant and the court categorically charged that the jury had to be satisfied beyond a reasonable doubt that defendant was the father of the child and that he knowingly, intentionally and with stubborn and willful purpose refused to support the child before they could return a verdict of guilty. State v. Humphrey, 236 N.C. 608, 73 S.E.2d 479 (1952).

Submission of Interrogatories or Issues Is Virtually Necessary. - The submission of issues in prosecutions under this section is, as a practical matter, almost a necessity. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Because of the nature and effect of the elements involved in this section, it would be difficult to properly try a case pursuant to this statute without submitting to the jury either oral interrogatories or written issues. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Unless Paternity Has Previously Been Determined. - If the question of paternity has been previously determined adversely to the accused, the case could well be tried solely upon the general issue of guilt. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Submission of Interrogatories or Issues Is Approved. - The submission of interrogatories or issues in criminal prosecutions under this section is now the approved practice, the questions and answers being treated as a special verdict. State v. McKee, 269 N.C. 280, 152 S.E.2d 204 (1967).

The practice of submitting written issues in cases charging violation of this section is strongly commended. State v. Lynch, 11 N.C. App. 432, 181 S.E.2d 186 (1971).

Although a general verdict of "guilty" or "guilty as charged" may be proper, it is not required. Indeed, the preferred practice in cases charging a violation of this section calls for the submission of written issues to the jury. State v. Hobson, 70 N.C. App. 619, 320 S.E.2d 319 (1984).

A jury's verdict based on issues submitted to it should include an individual determination of four issues. First, is defendant a parent of the illegitimate child in question? Second, did defendant receive notice and demand for support? Third, did defendant willfully neglect or refuse to provide adequate support for the child? Lastly, if the answers to the preceding are yes, is defendant guilty of willful neglect or refusal to maintain and provide adequate support for his illegitimate child? Such a verdict of the jury is in the nature of a special verdict and, when attempted, must reveal that all issues of ultimate material fact have been resolved against defendant. State v. Hobson, 70 N.C. App. 619, 320 S.E.2d 319 (1984).

Verdict upon Proper Issues Is Sufficient Without General Verdict of Guilty. - A verdict upon the issues of paternity and nonsupport, if resolved in favor of the State, is sufficient to support a judgment against defendant without a general verdict by the jury of guilty. This does not contravene the provisions of the North Carolina Constitution requiring trial and verdict by jury in criminal cases. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964), holding findings in special verdict deficient and granting a new trial.

A jury verdict must unambiguously state that defendant has been found guilty of a crime. State v. Hobson, 70 N.C. App. 619, 320 S.E.2d 319 (1984).

A general verdict of "guilty" or "guilty as charged" is sufficient when a defendant is properly charged under this section. However, when the jury undertakes to spell out its verdict without specific reference to the charge, it is essential that the spelling be correct. State v. Hobson, 70 N.C. App. 619, 320 S.E.2d 319 (1984).

Verdict Must Find Willful Nonsupport. - Willfulness is an essential element of the offense denounced by this section, and a verdict "guilty of failure to support and maintain his bastard child" was insufficient to support a judgment. State v. Allen, 224 N.C. 530, 31 S.E.2d 530 (1944).

If a jury finds that the accused is a parent of the child but that he has not willfully failed or refused to support the child, there can be no conviction, for no crime has been committed. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Verdict Held Insufficient. - A verdict of "guilty of willful nonsupport of illegitimate child" was insufficient in that it failed to fix the paternity of the child. State v. Ellison, 230 N.C. 59, 52 S.E.2d 9 (1949).

A verdict of "guilty of the charge of bastardy" would not support a judgment in a prosecution under this section. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962).

Where the nonsupport issue submitted was, "Has the defendant . . . willfully neglected and refused to support and maintain said illegitimate child?", an affirmative answer did not supply the information as to whether demand was made, or, if made, whether it was before or after the prosecution was commenced. Because of the deficiency of the findings in the special verdict, there had to be a new trial. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

A verdict of "guilty of non-support of illegitimate child" was held improper and was set aside where it neither alluded generally to the warrant nor used specific language sufficient to show a conviction of the offense charged. State v. Hobson, 70 N.C. App. 619, 320 S.E.2d 319 (1984).


§ 49-3. Place of birth of child no consideration.

The provisions of this Article shall apply whether such child shall have been begotten or shall have been born within or without the State of North Carolina: Provided, that the child to be supported is a bona fide resident of this State at the time of the institution of any proceedings under this Article.

History

(1933, c. 228, s. 2.)

§ 49-4. When prosecution may be commenced.

The prosecution of the reputed father of a child born out of wedlock 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 the child, three years from the date of the last payment whether the last payment was made within three years of the birth of the child or thereafter: Provided, the action is instituted before the child attains the age of 18 years.

The prosecution of the mother of a child born out of wedlock may be instituted under this Chapter at any time before the child attains the age of 18 years.

History

(1933, c. 228, s. 3; 1939, c. 217, s. 3; 1945, c. 1053; 1951, c. 154, s. 2; 2013-198, s. 18.)

Effect of Amendments. - Session Laws 2013-198, s. 18, effective June 26, 2013, substituted "a child born out of wedlock" for "an illegitimate child" twice; and, in subdivision (3), substituted "the child" for "such child" twice and substituted "the last payment" for "such last payment."

Legal Periodicals. - As to the effect of the 1945 amendment to this section, see 23 N.C.L. Rev. 331 (1945).

For survey of constitutional law in 1982, see 61 N.C.L. Rev. 1052 (1983).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former statutory provisions.

Constitutionality. - The three-year statute of limitations contained in subdivision (1) of this section for prosecutions under G.S. 49-2 does not violate the equal protection clause of the federal Constitution on grounds that it prescribes a limitations period for the prosecution of persons who willfully fail to support their illegitimate children, whereas there is no limitations period for the prosecution under G.S. 14-322(d) of persons who willfully fail to support their legitimate children. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

There is no statute of limitations as such affecting a father's duty to support his illegitimate children. That duty continues throughout the child's minority. Bertie-Hertford Child Support Enforcement Agency ex rel. Souza v. Barnes, 80 N.C. App. 552, 342 S.E.2d 579 (1986).

As to the inapplicability of statute limiting criminal prosecutions for misdemeanors to two years to proceedings under the former statute, see State v. Hedgepeth, 122 N.C. 1039, 30 S.E. 140 (1898); State v. Perry, 122 N.C. 1043, 30 S.E. 139 (1898).

This section cannot be limited to proceedings to establish paternity. Its language is clear, positive and unbending. It seems to have been taken from C.S., § 274, of the old law, which was held to supersede the general statute of limitations on the subject. State v. Bradshaw, 214 N.C. 5, 197 S.E. 564 (1938).

Maximum time for prosecution was formerly six years from birth. State v. Killian, 217 N.C. 339, 7 S.E.2d 702 (1940).

The failure to support an illegitimate child is a continuing offense, and the date such child was born is immaterial, provided the action is instituted within the time prescribed by this section and that demand for the support of such child was made a reasonable time before the action was instituted. State v. Womack, 251 N.C. 342, 111 S.E.2d 332 (1959).

A proceeding to establish paternity of an illegitimate child and to prosecute father who willfully neglects or refuses to support and maintain the same may be instituted at any time within three years after the birth of the child. State v. Moore, 222 N.C. 356, 23 S.E.2d 31 (1942).

Where the question of paternity is judicially determined within three years after the birth of the illegitimate child, the defendant may thereafter be prosecuted for his willful neglect and refusal to support the child. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

Acknowledgment Made More Than Three Years from Birth Does Not Prevent Running of Statute. - Where acknowledgment of the paternity of a child has been made by payments for its support within three years from the date of its birth, prosecution for nonsupport may be brought within three years thereafter, but a later acknowledgment, made more than three years from the birth, will not avail to prevent the running of the statute. State v. Hodges, 217 N.C. 625, 9 S.E.2d 24 (1940).

Proof Required Under Subdivision (3). - Where prosecution was not begun within three years after the birth, and paternity was not judicially determined within that time, the State had to meet the requirements of subdivision (3) of this section and prove not only that defendant made payments for the child's support within the three years after its birth, but also that the warrant was issued within three years from the date of the last payment. State v. McKee, 269 N.C. 280, 152 S.E.2d 204 (1967).

Applied in State v. Caudill, 68 N.C. App. 268, 314 S.E.2d 592 (1984).

Cited in State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968); Durham County Dep't of Social Servs. v. Williams, 52 N.C. App. 112, 277 S.E.2d 865 (1981).


§ 49-5. Prosecution; death of mother no bar; determination of fatherhood.

Proceedings under this Article may be brought by the mother or her personal representative or, if the child is likely to become a public charge, the director of social services or such person as by law performs the duties of such official in said county where the mother resides or the child is found. Proceedings under this Article may be brought in the county where the mother resides or is found, or in the county where the putative father resides or is found, or in the county where the child is found. The fact that the child was born outside of the State of North Carolina shall not be a bar to proceedings against the putative father in any county where he resides or is found, or in the county where the mother resides or the child is found. The death of the mother shall in no wise affect any proceedings under this Article. Preliminary proceedings under this Article to determine the paternity of the child may be instituted prior to the birth of the child but when the judge or court trying the issue of paternity deems it proper, he may continue the case until the woman is delivered of the child. When a continuance is granted, the courts shall recognize the person accused of being the father of the child with surety for his appearance, either at the next session of the court or at a time to be fixed by the judge or court granting a continuance, which shall be after the delivery of the child.

History

(1933, c. 228, s. 4; 1961, c. 186; 1969, c. 982; 1971, c. 1185, s. 18; 1981, c. 599, s. 13.)

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former statutory provisions.

Institution of Proceedings. - The provision that proceedings under this section can only be instituted by the mother or her personal representative or by the director of social services is applicable both to preliminary proceedings to determine paternity and to proceedings involving the completed crime. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

The affidavit initiating the prosecution may be made by the mother or the director of social services. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962).

Mother may decide whether to call upon father for assistance. In the event that she elects not to make the demand, her election will be respected unless the child is likely to become a public charge, in which case the director of social services may proceed. State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962).

Joining of Mother in Prosecution Is Not Required. - Prosecution of the alleged father for violation of G.S. 49-2 may be initiated by the mother, but her joining therein is not a prerequisite to the validity of the prosecution. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

Continuance Until After Birth of Child. - By express statutory language preliminary proceedings to determine the paternity of a child may be initiated and determined before the birth of the child. A continuance of the proceedings until after the birth of the child rests in the sound discretion of the trial court. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

It would seem that in a preliminary proceeding under this section a continuance until the birth of the child would be required when a defendant requests a blood-grouping test under G.S. 49-7. State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523 (1976).

Rights of Surety. - The surety on the appearance bond of the defendant, who, in bastardy proceedings under the former law, appealed from a justice of the peace to the county court, which remanded the cause for want of jurisdiction, could insist upon the exact terms of his bond; and where the defendant had been legally convicted and had served his term as the law provided on failing to pay the allowance made to the prosecutrix, costs, etc., the provisions in the appearance bond as to the surety's liability had been discharged. State v. Carnegie, 193 N.C. 467, 137 S.E. 308 (1927).

Death of Child. - What kind of order should be entered where the child dies pending trial is in the discretion of the judge. The former statute seemed to require an order in every case. State v. Beatty, 66 N.C. 648 (1872).

Consideration for Promise of Father to Support Child. - Where the mother of an illegitimate child had refrained from enforcing maintenance thereof under the former statute, this was held to constitute consideration to support an action on a promise of the father to support and educate the child. Thyer v. Thyer, 189 N.C. 502, 127 S.E. 553 (1925).


§ 49-6. Mother not excused on ground of self-incrimination; not subject to penalty.

No mother of a child born out of wedlock shall be excused, on the ground that it may tend to incriminate her or subject her to a penalty or a forfeiture, from attending and testifying, in obedience to a subpoena of any court, in any suit or proceeding based upon or growing out of the provisions of this Article, but no such mother shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing as to which, in obedience to a subpoena and under oath, she may so testify.

History

(1933, c. 228, s. 5; 1939, c. 217, s. 5; 2013-198, s. 19.)

Effect of Amendments. - Session Laws 2013-198, s. 19, effective June 26, 2013, substituted "a child born out of wedlock" for "an illegitimate child" in this section.

§ 49-7. Issues and orders.

The court before which the matter may be brought shall determine whether or not the defendant is a parent of the child on whose behalf the proceeding is instituted. After this matter has been determined in the affirmative, the court shall proceed to determine the issue as to whether or not the defendant has neglected or refused to provide adequate support and maintain the child who is the subject of the proceeding. After this matter has been determined in the affirmative, the court shall fix by order, subject to modification or increase from time to time, a specific sum of money necessary for the support and maintenance of the child, subject to the limitations of G.S. 50-13.10. The amount of child support shall be determined as provided in G.S. 50-13.4(c). The order fixing the sum shall require the defendant to pay it either as a lump sum or in periodic payments as the circumstances of the case may appear to the court. The social security number, if known, of the minor child's parents shall be placed in the record of the proceeding. Compliance by the defendant with any or all of the further provisions of this Article or the order or orders of the court requiring additional acts to be performed by the defendant shall not be construed to relieve the defendant of his or her responsibility to pay the sum fixed or any modification or increase thereof.

The court before whom the matter may be brought, on motion of the State or the defendant, shall order that the alleged-parent defendant, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage and which are reasonably accessible to the alleged-parent defendant, the known natural parent, and the child. The results of those blood tests and comparisons, including the statistical likelihood of the alleged parent's parentage, if available, shall be admitted in evidence when offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist or other duly qualified person. The evidentiary effect of those blood tests and comparisons and the manner in which the expenses therefor are to be taxed as costs shall be as prescribed in G.S. 8-50.1. In addition, if a jury tries the issue of parentage, they shall be instructed as set out in G.S. 8-50.1. From a finding on the issue of parentage against the alleged-parent defendant, the alleged-parent defendant has the same right of appeal as though he or she had been found guilty of the crime of willful failure to support a child born out of wedlock.

History

(1933, c. 228, s. 6; 1937, c. 432, s. 2; 1939, c. 217, ss. 1, 4; 1944, c. 40; 1947, c. 1014; 1971, c. 1185, s. 19; 1975, c. 449, s. 3; 1977, c. 3, s. 2; 1979, c. 576, s. 2; 1987, c. 739, s. 1; 1989, c. 529, s. 6; 1997-433, s. 4.1; 1998-17, s. 1; 2013-198, s. 20.)

Effect of Amendments. - Session Laws 2013-198, s. 20, effective June 26, 2013, substituted "has been" for "shall have been" in the third sentence of the first paragraph, and substituted "a child born out of wedlock" for "an illegitimate child" at the end of the last sentence of the second paragraph.

Legal Periodicals. - For comment on the 1937 amendment to this section, see 15 N.C.L. Rev. 347 (1937).

For comment on the 1939 amendment, see 17 N.C.L. Rev. 351 (1939).

For comment on the 1944 amendment, see 23 N.C.L. Rev. 343 (1945).

For comment on the 1947 amendment, see 25 N.C.L. Rev. 412 (1947).

As to effect of G.S. 8-50.1 on the provision of this section as to blood-grouping tests, see 27 N.C.L. Rev. 456 (1949).

For 1984 survey, "Intestate Succession of Illegitimate Children in North Carolina," see 63 N.C.L. Rev. 1274 (1985).

CASE NOTES

As to the construction together of this section and G.S. 7A-290, see State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39 (1968).

Continuing Duty to Support. - The payment of the lump sum amount ordered pursuant to this section as a result of a conviction for non-support of an illegitimate child does not relieve defendant of responsibility for future support. Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984).

This section, read together with G.S. 50-13.7, clearly contemplates a continuing obligation on the part of the parents of an illegitimate child to provide support, including when necessary the modification or increase of payments ordered to satisfy this obligation. Having been conclusively determined a "responsible parent," as that term is defined in G.S. 110-129, the father of an illegitimate child must necessarily remain liable for the future support of his minor child. Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984).

Right to Blood Test. - A defendant's right to a blood test to determine parentage is a substantial right, and upon defendant's motion the court must order the test when it is possible to do so. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970); State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523 (1976).

The 1975 amendment to G.S. 8-50.1 amplifies the importance of the right to a blood-grouping test under this section. State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523 (1976).

The value of serological blood tests, when made and interpreted by specifically qualified technicians using approved testing procedures and reagents of standard strength, is now generally recognized. Such tests, however, can never prove the paternity of any individual, and they cannot always exclude the possibility. Nevertheless, in a significant number of cases, they can disprove it. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

The result of a blood test to determine parentage will be either "exclusion of paternity demonstrated" or "exclusion of paternity not possible." It has been estimated that by tests based upon each of three blood-type classifications, A-B-O, M-N, and Rh-hr, a man falsely accused has a 50-55% chance of proving his nonpaternity. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

The blood-grouping test results are conclusive only in excluding the putative father. The results might show him to have a blood type which the father of the child must have had; but this only indicates that of all the people of that blood type or group, he, as well as anyone else with that blood type or group, could have been the father of the child. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Attacking Results of Blood Tests. - The only areas in which the results of blood-grouping tests should be open to attack are in the method of testing or in the qualifications of the persons performing the tests. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

It is for the General Assembly to decide the weight to be given blood-grouping tests. State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974).

As to the use of blood tests as evidence of nonpaternity prior to the 1975 amendments to this section and G.S. 8-50.1, see State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970); State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974).

Death of Child Making Blood Test Impossible. - When the death of the child makes a blood test impossible the situation is analogous to that which occurs when an eyewitness to events constituting the basis for an indictment dies before the accused has interviewed him or taken his deposition. It would hardly be suggested that to try the defendant after the death of that witness would deprive him of due process and that therefore the prosecution must be dismissed. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970), decided prior to the 1975 amendments to G.S. 8-50.1 and this section.

To hold that a prosecution under G.S. 49-2 must be dismissed when the death of the child deprives the defendant of a blood test would be to attach to the test a significance which the legislature failed to give it. Even when a blood-grouping test demonstrates nonpaternity, the law does not make the test conclusive of that issue. A fortiori, the absence of a test, which, if made, would provide one falsely accused only an even chance to prove his nonpaternity, should not result in a dismissal of the action. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970), decided prior to the 1975 amendments to § 8-50.1 and this section.

An infant's blood group cannot always be established immediately after birth, but by the age of six months, an accurate determination can always be had. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

This section seems to contemplate the submission of issues. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Issue of Paternity Must Be Determined First. - In a prosecution for willful neglect or refusal of alleged father to support his illegitimate child, the issue of paternity must first be determined before and separate from the determination of the issue of guilt or innocence of the offense charged. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952).

The court is expressly commanded by this section to first determine the paternity of the child. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

Domestic relations court was entitled to determine paternity of child, even though when the affidavit was filed and the warrant was issued the defendant had not committed the offense of willfully neglecting same, and even though the court exceeded its power in ordering the defendant to make payments, its determination of the facts as to paternity was in effect a jury verdict, and constituted a judicial declaration of the paternity of the child. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

As an affirmative answer to question of paternity is an indispensable prerequisite to defendant's conviction on the criminal charge. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976); Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 63 N.C. App. 432, 305 S.E.2d 207 (1983), modified and aff'd, 311 N.C. 580, 319 S.E.2d 224 (1984).

Paternity Must Be Established Beyond a Reasonable Doubt. - The paternity of a child cannot be established by a mere preponderance of the evidence, but must be established beyond a reasonable doubt. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956).

Form of Verdict. - This section requires the court to determine, in the affirmative, first, whether or not the defendant is the parent, before it proceeds to determine whether or not defendant has willfully failed to support his or her child. For this reason, the verdict in a bastardy action should ordinarily be rendered in a special form, upon the submission of separate written issues or interrogatories, or alternatively, if a general verdict is returned, it should be accompanied by appropriate findings of fact to clarify the precise effect of the judgment. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

Appeal on Issue of Parentage Where Defendant Is Acquitted on Charge of Nonsupport. - Under this section, a defendant in a prosecution for nonsupport of his illegitimate child may appeal from a verdict establishing his paternity of the child, notwithstanding the fact that the verdict finds him not guilty of nonsupport. State v. Clement, 230 N.C. 614, 54 S.E.2d 919 (1949).

Even if defendant is found not guilty of willfully neglecting or refusing to support his illegitimate child, he may nevertheless appeal an adverse finding and conclusion that he is the parent of such illegitimate child. State v. Lambert, 53 N.C. App. 799, 281 S.E.2d 754 (1981).

Defendant Not Entitled to Appeal When Acquitted of Nonsupport. - Before the 1947 amendment, which added the proviso at the end of this section, it was held that where the jury found the defendant to be the father of the bastard child, but not guilty of nonsupport, this was an acquittal. The defendant therefore was not entitled to an appeal. State v. Hiatt, 211 N.C. 116, 189 S.E. 124 (1937).

Modification of Orders. - Where defendant pleaded guilty and orders were made for the support of the child, the court had no authority to strike out a plea of guilty or a judgment at a former term; but, under this section, the court could modify the conditions of the former judgment, or increase from time to time the amount necessary for the child's support. State v. Duncan, 222 N.C. 11, 21 S.E.2d 822 (1942).

This section and G.S. 49-8 contemplate initial findings and an order of support, subject to modification or increase from time to time, to be enforced by such prescribed supplemental orders as the exigencies of the case may require. State v. Dill, 224 N.C. 57, 29 S.E.2d 145 (1944).

As to jurisdiction over defendant who was over 16 years of age during the time he was charged with willfully neglecting or refusing to support his illegitimate child, but was under 16 when conception of the child occurred, see State v. Bowser, 230 N.C. 330, 53 S.E.2d 282 (1949).

Applied in State v. Dixon, 257 N.C. 653, 127 S.E.2d 246 (1962); State v. Fowler, 9 N.C. App. 64, 175 S.E.2d 331 (1970); State v. White, 42 N.C. App. 320, 256 S.E.2d 505 (1979).

Cited in State v. Black, 216 N.C. 448, 5 S.E.2d 313 (1939); State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958); State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970); State v. Garner, 34 N.C. App. 498, 238 S.E.2d 653 (1977); State v. Walton, 41 N.C. App. 281, 254 S.E.2d 661 (1979); State v. Camp, 299 N.C. 524, 263 S.E.2d 592 (1980).


§ 49-8. Power of court to modify orders, suspend sentence, etc.

Upon the determination of the issues set out in G.S. 49-7 and for the purpose of enforcing the payment of the sum fixed, the court is hereby given discretion, having regard for the circumstances of the case and the financial ability and earning capacity of the defendant and his or her willingness to cooperate, to make an order or orders upon the defendant and to modify such order or orders from time to time as the circumstances of the case may in the judgment of the court require subject to the limitations of G.S. 50-13.10. The order or orders made in this regard may include any or all of the following alternatives:

  1. Repealed by Session Laws 1994, Extra Session, c. 14, s. 35.
  2. Suspend sentence and continue the case from term to term;
  3. Release the defendant from custody on probation conditioned upon the defendant's compliance with the terms of the probation and the payment of the sum fixed for the support and maintenance of the child;
  4. Order the defendant to pay to the mother of the said child the necessary expenses of birth of the child and suitable medical attention for her;
  5. Require the defendant to sign a recognizance with good and sufficient security, for compliance with any order which the court may make in proceedings under this Article.

History

(1933, c. 228, s. 7; 1939, c. 217, s. 6; 1987, c. 739, s. 2; 1994, Ex. Sess., c. 14, s. 35.)

Local Modification. - Person: 1967, c. 848, s. 1.

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former statutory provisions.

Constitutionality. - A judgment for an allowance for the mother of an illegitimate child is not a debt arising out of contract, to which the protection afforded by the inhibition of the constitutional provision against imprisonment for debt extends, but is rendered as a means of enforcing a legal obligation and duty imposed by the legislature under the police power of the State upon one who is responsible for bringing into existence a child that may become a burden to society. State v. Manuel, 20 N.C. 144 (1838); State v. Cannady, 78 N.C. 539 (1878); State v. Parsons, 115 N.C. 730, 20 S.E. 511 (1894); State v. Wynne, 116 N.C. 981, 21 S.E. 35 (1895); State v. Nelson, 119 N.C. 797, 25 S.E. 863 (1896).

Imprisonment of the putative father for failure to obey an order of maintenance or give the bond is a matter of legislative discretion, and is not imprisonment for debt. State v. Green, 71 N.C. 172 (1874); State v. Wynne, 116 N.C. 981, 21 S.E. 35 (1895); State v. Morgan, 141 N.C. 726, 53 S.E. 142 (1906).

Proceedings in bastardy under the former law, C.S., G.S. 273, for an allowance to be made to the woman were civil and not criminal, for the enforcement of police regulations, and that section was held not to be contrary to the provisions of Art. IV, § 27, of the Constitution of 1868, relating to jurisdiction of justices. Richardson v. Egerton, 186 N.C. 291, 119 S.E. 487 (1923).

Punishment for Failure to Support. - The only punishment authorized by law for the willful failure or neglect to support an illegitimate child is found in this section and is limited at most to six months in prison. State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Six months is the maximum sentence permitted by this section. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Work on Roads. - Under former law, when there was no house of correction in the county, the court could only commit the putative father to jail until the performance of the order of support. He could not be put to work on roads. State v. Addington, 143 N.C. 683, 57 S.E. 398 (1907).

For case in which sentence was held excessive, see State v. Nelson, 119 N.C. 797, 25 S.E. 863 (1896).

Suspension of Execution of Sentence. - Upon defendant's conviction of willful failure to support his illegitimate child, the trial court has plenary power to suspend execution of sentence on condition that defendant pay specified sums of money into court for support of his child. State v. Bowser, 232 N.C. 414, 61 S.E.2d 98 (1950). See also, State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958).

Effect of Discharge. - After the defendant, who had served a 20-day sentence for failure to pay under former law, had been discharged, he could not be resentenced to the house of correction at a subsequent term. State v. Burton, 113 N.C. 655, 18 S.E. 657 (1893).

Support Payments Are Not a Fine. - The support payments ordered by a court are to be paid for the support of the defendant's minor children and are not in the nature of a fine. State v. Green, 8 N.C. App. 234, 174 S.E.2d 8, aff'd, 277 N.C. 188, 176 S.E.2d 756 (1970).

Application of Money Paid into Court. - This section does not contemplate that money paid into court to discharge past due obligations should be paid to a person to whom it was not due. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

When, without compensation, doctors and hospitals have performed immediately necessary services incident to the birth of a child and its subsequent welfare, public policy and simple justice require that money paid into court for them be disbursed directly to them; in no other way can their interests be protected. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Effect of Death of Child. - Under the former law, C.S. G.S. 273, the intention was to secure to the mother either her probable expenses or to reimburse her actual outlay, and the death of the child when born did not affect the right of the mother to "support"; among other things, she was entitled to payment for medical attention and medicine for herself and the burial expenses of the child, consequent upon the defendant's unlawful act. State v. Addington, 143 N.C. 683, 57 S.E. 398 (1907).

Mother as Creditor of Father. - The mother of an illegitimate child, to whom an allowance has been made in bastardy proceedings, is such a creditor of the father of her child as to permit her to oppose the insolvent's discharge by suggesting fraud in answer to his petition. State v. Parsons, 115 N.C. 730, 20 S.E. 511 (1894).

Cited in State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970); State v. Lee, 40 N.C. App. 165, 252 S.E.2d 225 (1979); Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980); Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981).


§ 49-9. Bond for future appearance of defendant.

At the preliminary hearing of any case arising under this Article it shall be the duty of the court, if it finds reasonable cause for holding the accused for a further hearing, to require a bond in the sum of not less than one hundred dollars ($100.00), conditioned upon the reappearance of the accused at the further hearing under this Article. This bond and all other bonds provided for in this Article shall be justified before, and approved by, the court or the clerk thereof.

History

(1933, c. 228, s. 8.)

ARTICLE 2. Legitimation of Children Born Out of Wedlock.

Sec.

§ 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.

History

(Code, s. 39; Rev., s. 263; C.S., s. 277; 1947, c. 663, s. 1; 1971, c. 154; 1977, c. 83, s. 1.)

Cross References. - For constitutional prohibition against private laws legitimating persons not born in lawful wedlock, see N.C. Const., Art. II, § 24(1)(n).

As to legitimation procedure when mother is married, see G.S. 49-12.1.

Legal Periodicals. - For a brief account of the 1947 amendments to this Article, see 25 N.C.L. Rev. 414 (1947).

For article, "The Parental Rights of Unwed Fathers: A Developmental Perspective," see 20 N.C. Cent. L.J. 45 (1992).

For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

For comment, "N.C. Gen. Stat. § 48-3-601 and N.C. Gen. Stat. § 7B-1111: A Putative Father's Right to Be a Father,” see 41 Campbell L. Rev. 201 (2019).

CASE NOTES

G.S. 29-19, 49-10 through 49-12 and 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

Requirement That Child's Surname Be Changed Is Invalid. - The valid purpose served by this section and G.S. 49-13 of establishing the filial relationship between illegitimate children and their fathers is not enhanced, advanced or served in any useful or justifiable way by the additional requirement that the child's surname be changed to that of the father; such a requirement denies the mother of an illegitimate child the equal protection of the laws, and because it requires arbitrary action on the part of an agency of the State, it denies such mothers a protected liberty interest without due process of law. Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981).

Inquiry in G.S. 49-10 and G.S. 49-12.1 is whether a putative father is the biological father of a minor child such that the rights and responsibilities inherent in the relationship between father and child may be acknowledged. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Section Read in Conjunction with Statutes Applicable to Special Proceedings. - This section, as a special proceeding, should provide procedural mechanisms for the full and fair resolution of cases. To ensure the parties' right to a trial by jury, this section can and should be read in conjunction with the procedural statutes that apply to all special proceeding. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Legitimation Procedure Within Jurisdiction of Superior Court Clerk. - The legitimation procedure, which is identified in this section as a special proceeding in the superior court of the county in which the putative father resides, is within the jurisdictional purview of the clerk of superior court. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

The clerks of superior court have authority, pursuant to this section, to enter an order legitimating a minor child of a man who alleges that he is the child's natural father, where the child is presumed to be legitimate because he was born to his mother while she was lawfully married to another man, provided that the issue of paternity must be submitted to and decided by a jury after the child and the husband have been properly made parties to the proceeding. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Purpose of Procedure for Legitimation. - By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

There are several ways to legitimate children in North Carolina: 1) verified petition filed with the superior court by the putative father, 2) subsequent marriage of the parents, or 3) civil action to establish paternity. Helms v. Young-Woodard, 104 N.C. App. 746, 411 S.E.2d 184 (1991), cert. denied, 331 N.C. 117, 414 S.E.2d 756, 506 U.S. 829, 113 S. Ct. 91, 121 L. Ed. 2d 53 (1992).

Phrase "born out of wedlock" should refer to the status of the parents of the child in relation to each other. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

A child born to a married woman, but begotten by one other than her husband, is a child "born out of wedlock." In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Effect of Legitimation on Prior Consent to Adoption. - A legitimation proceeding brought under this section by the putative father of a child born out of wedlock, wherein the child was declared legitimate, had no effect upon the prior written consent to adoption given by the unwed mother under G.S. 48-6. In re Doe, 11 N.C. App. 560, 181 S.E.2d 760, cert. denied and appeal dismissed, 279 N.C. 394, 183 S.E.2d 244 (1971). See G.S. 49-13.1

Statute Inoperative After Death of Father. - Both the North Carolina legitimation and paternity statutes are inoperative after the death of the father. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806 (1995).

No Standing to Bring Legitimation Action After Termination of Parental Rights. - Where father's parental rights had been terminated under G.S. 7B-1112 in 1999, he lacked standing to bring an action under G. S. 49-10, G.S. 49-11 to legitimate the same child to whom his parental rights had been terminated. Gorsuch v. Dees, 173 N.C. App. 223, 618 S.E.2d 747 (2005).

Petition to Be Filed by Father Only. - This statute unambiguously limits the person who may file a legitimation petition to the putative father of any child born out of wedlock; thus, the putative grandfather lacked standing to attempt legitimation. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806 (1995).

Subsequently Filed Affidavit Did Not Relate Back to Original Filing Date. - Where termination order, later held to be invalid for failure to use due diligence in ascertaining putative father's address, was filed with adoption petition in lieu of affidavit required by G.S. 48-13, a subsequently filed affidavit did not relate back to original filing date of petition so as to cut off rights of putative father who filed legitimation petition to this section before affidavit was filed. In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).

Petition Addressed Directly to Judge. - A decree of legitimation was not void upon the ground that the petition should have been originally addressed to the clerk of the court, instead of directly to the judge. Dunn v. Dunn, 199 N.C. 535, 155 S.E. 165 (1930).

Child Is Necessary Party. - Under this section, the child is a necessary party to the proceeding. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

"Best Interest of the Child" Inquiry Not Required. - North Carolina's General Assembly has not required a best interest of the child inquiry in the context of a legitimation proceeding. While the General Assembly has specifically required such an inquiry under G.S. 50-13.2 and G.S. 7B-1110, and Chapter 48, its failure to mandate a best interest inquiry in connection with G.S. 49-10 and G.S. 49-12.1 is clear evidence of its intent that no such inquiry is required in this context. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

G.S. 49-10 specifies the procedures to be followed in a proceeding pursuant to G.S. 49-12.1, and provides that a child is a necessary party to a legitimation proceeding. G.S. 49-12.1(a) states specifically that if the child is a minor, a guardian ad litem must be appointed to represent the child; however, regardless of whether G.S. 49-12.1 required this, appointment of a guardian ad litem for the minor child is mandated by G.S. 1A-1, N.C. R. Civ. P. 17. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Married Woman's Husband Should Be Summoned. - As a potentially adverse party in a special proceeding under this section brought by natural father of child whose mother was married to another man at the time of his conception and birth, the married woman's husband should be construed as one of the respondents on whom summons must be served. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985). See also G.S. 49-12.1.

Summons Procedure Governed by G.S. 1-393. - The requirement that a summons be served upon the man to whom the child's mother was married when the child was conceived and born would be governed by G.S. 1-393. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Standard of Proof. - This section, just as G.S. 49-14, requires proof beyond a reasonable doubt to establish paternity in rebuttal of the presumption of legitimacy arising from the lawful marriage of child's mother to man other than its natural father. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985). But see now G.S. 49-12.1(c).

Presumption of Legitimacy Where Child's Mother Is Married. - Because of the strong presumption of legitimacy involved where mother of child is married, the lawful husband of the mother has an obvious interest in a legitimation proceeding involving a child born to his wife while the two were married. The rebuttal of this presumption should be presented to and resolved by a jury to ensure that the parties' rights are adequately protected. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Man Living with Mother for Five Years Preceding Child's Birth Was Putative Father. - Petitioner, who had lived openly and notoriously in an adulterous relationship with the mother of child (born in 1965) since 1960, continuing to maintain and care for the child born of that relationship, was the "putative father" of the child, rather than the mother's husband, who discontinued living with the mother in 1960, years before the child was born. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Transfer to Civil Docket for Jury Determination of Paternity. - Resolution by a jury of the factual issue of paternity, when a presumption of legitimacy is involved, may be accomplished by transferring the case to the civil issue docket for trial at the next ensuing session of the superior court pursuant to G.S. 1-273 [see now G.S. 1-301.1 et seq.]. Therefore, it is not necessary to require that the putative father first file a paternity action under G.S. 49-14 before proceeding under this section to have child legitimated. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).

Relationship to Actions for Custody. - Father of a child born out of wedlock who sought custody of the child under G.S. 50-13.1(a) was treated as a third party as he had not legitimated the child pursuant to G.S. 49-10, 49-12, or 49-12.1 or had his paternity adjudicated under G.S. 49-14. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Priority over Paternity Action. - When a putative father filed both an action for custody in the district court, which was converted into a paternity action, and a legitimation action in the superior court, the legitimation action took priority, as legitimation vested greater rights in the parent and child than an order adjudicating paternity; therefore, the court in which the custody action was filed was divested of jurisdiction. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

In a termination of parental rights proceeding, because a trial court improperly interpreted a stipulation regarding legitimacy under G.S. 49-10, it erroneously found that the four factors in G.S. 7B-1111(a)(5) were satisfied; because there was insufficient evidence on the elements outside of the stipulation, a reversal was required. In re I.S., 170 N.C. App. 78, 611 S.E.2d 467 (2005).

Termination of a father's parental rights was upheld on appeal since the father failed to challenge any of the findings of fact made by the trial court, namely that prior to the date the motion to terminate his parental rights was filed, he never established paternity over the minor child at issue, never legitimated the child by statute or marriage, nor had he provided any financial support. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).

Termination of Parental Rights. - No evidence supported terminating a father's parental rights for failure to legitimate the children because no evidence was adduced showing (1) the children were born out of wedlock or, (2) when the petition was filed, the father did not file a paternity affidavit or petition to legitimate the children, legitimate the children by marrying the children's mother, or establish paternity in court, and (3) a proffer that the father did not pay support or provide gifts or clothes since the children were in foster care did not suffice. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

Applied in Gilliard v. Craig, 331 F. Supp. 587 (W.D.N.C. 1971), aff'd, 409 U.S. 807, 93 S. Ct. 39, 34 L. Ed. 2d 66 (1972), rehearing denied, 409 U.S. 1119, 93 S. Ct. 892, 34 L. Ed. 2d 704 (1973); Craid v. Gilliard, 409 U.S. 807, 93 S. Ct. 39, 34 L. Ed. 2d 66 (1972); David v. Ferguson, 153 N.C. App. 482, 571 S.E.2d 230 (2002); Helms v. Landry, 194 N.C. App. 787, 671 S.E.2d 347 (2009), review denied, stay denied, 363 N.C. 125, 675 S.E.2d 364 (2009).

Cited in Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662 (1940); Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974); Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744 (1994); In re Baby Girl Dockery, 128 N.C. App. 631, 495 S.E.2d 417 (1998); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re T.L.B., 167 N.C. App. 298, 605 S.E.2d 249 (2004); In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005); Yurek v. Shaffer, 198 N.C. App. 67, 678 S.E.2d 738 (2009); In re S.C.R., 198 N.C. App. 525, 679 S.E.2d 905 (2009), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010); In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).


§ 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.

History

(Code, s. 40; Rev., s. 264; C.S., s. 278; 1955, c. 540, s. 2; 1959, c. 879, s. 10; 1963, c. 1131.)

CASE NOTES

Constitutionality. - G.S. 29-19, G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

Purpose of Procedure for Legitimation. - By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

Legitimated Child May Inherit By, Through and From Parents. - A legitimated child shall have the same right to inherit by, through and from his father and mother as if such child had been born in lawful wedlock. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

The plain intent and language of this section is that a legitimated child shall inherit his father's real estate and be entitled to the personal estate of his father in the same manner as if it had been born in lawful wedlock. Love v. Love, 179 N.C. 115, 101 S.E. 562 (1919).

Effect of Legitimation on Prior Consent to Adoption. - A legitimation proceeding brought under G.S. 49-10 by the putative father of a child born out of wedlock, wherein the child was declared legitimate, had no effect upon the prior written consent to adoption given by the unwed mother under G.S. 48-6. In re Doe, 11 N.C. App. 560, 181 S.E.2d 760, cert. denied and appeal dismissed, 279 N.C. 394, 183 S.E.2d 244 (1971). See G.S. 49-13.1

Standing to Bring Action After Termination of Parental Rights. - Where father's parental rights had been terminated under G.S. 7B-1112 in 1999, he lacked standing to bring an action under G.S. 49-10, G.S. 49-11 to legitimate the same child to whom his parental rights had been terminated. Gorsuch v. Dees, 173 N.C. App. 223, 618 S.E.2d 747 (2005).

Priority over Paternity Action. - When a putative father filed both an action for custody in the district court, which was converted into a paternity action, and a legitimation action in the superior court, the legitimation action took priority, as legitimation vested greater rights in the parent and child than an order adjudicating paternity; therefore, the court in which the custody action was filed was divested of jurisdiction. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Transfer of Rights and Duties to Biological Father. - Husband of the mother of a child born during the parties' marriage is presumed to be the father of that child and, thus, enjoys all the parental rights and privileges, as well as obligations, to that child. A determination that a petitioner in a legitimation action, and not the husband, is the biological father of the child terminates the husband's rights to the child, conferring them onto petitioner pursuant to G.S. 49-11; thus, unless the husband has previously been determined not to be the child's father, he is a necessary party to the proceeding pursuant to G.S. 1A-1, N.C. R. Civ. P. 19(b). In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Applied in Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981).

Cited in Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983).


§ 49-12. Legitimation by subsequent marriage.

When the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his 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.

History

(1917, c. 219, s. 1; C.S., s. 279; 1947, c. 663, s. 2; 1955, c. 540, s. 3; 1959, c. 879, s. 11.)

Legal Periodicals. - For survey of 1979 property law, see 58 N.C.L. Rev. 1509 (1980).

For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Constitutionality. - G.S. 29-19, G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

Upon the evidence in the case, and the theory of the defense, the defendant could not invoke the doctrine of vested rights so as to contest the constitutionality of this section. Bowman v. Howard, 182 N.C. 662, 110 S.E. 98 (1921).

Purpose of Procedure for Legitimation. - By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

G.S. 49-13 in Pari Materia. - This section and G.S. 49-13 regulate the family circle and define the rights and responsibilities of members of the circle, and must be construed in pari materia. Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822 (1979).

Action Under G.S. 49-14 Prohibited When Child Is Legitimated. - If child is legitimated by virtue of this section, an action under G.S. 49-14 cannot be maintained, as G.S. 49-14 establishes a means of support for illegitimate children. Lewis v. Stitt, 86 N.C. App. 103, 356 S.E.2d 398 (1987).

Strict Construction. - This section is strictly construed as being in derogation of the common law. In re Estate of Wallace, 197 N.C. 334, 148 S.E. 456 (1929).

Retroactivity of Section. - This section, by its express terms, is retroactive as well as prospective in effect. Stewart v. Stewart, 195 N.C. 476, 142 S.E. 577 (1928); Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

The provisions of this section are retroactive as well as prospective in effect, and a child born out of wedlock whose mother married his reputed father prior to the enactment of the statute is the heir of his parents who die subsequent to its enactment. In re Estate of Wallace, 197 N.C. 334, 148 S.E. 456 (1929).

The legislature has given a new or additional meaning to the word "legitimate" as used in this section. Although this meaning is not strictly within its ordinary definition, the courts will adopt the meaning impressed upon the word by legislative enactment. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950).

"Reputed Father". - The word "reputed" means considered, or generally supposed, or accepted by general or public opinion. Bowman v. Howard, 182 N.C. 662, 110 S.E. 98 (1921).

The use of the word "reputed" rather than "putative" in this section was intended merely to dispense with the absolute proof of paternity, so that, if the child is "regarded," "deemed," "considered," or "held in thought" by the parents themselves as their child, either before or after marriage, it is legitimate. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950); Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822 (1979).

DNA sampling results may be used to rebut the presumption that a child born to a married woman is her husband's child and to simultaneously offer evidence that a person was "born out of wedlock" within the meaning of this section. Batcheldor v. Boyd, 108 N.C. App. 275, 423 S.E.2d 810 (1992), cert. denied, 333 N.C. 254, 426 S.E.2d 700 (1993).

Irregularity in divorce proceedings is not a ground for declaring children who would otherwise be legitimated by a subsequent marriage illegitimate. Reed v. Blair, 202 N.C. 745, 164 S.E. 118 (1932).

Rights and Duties as to Custody and Support. - In declaring in this section that "the child shall in all respects after such intermarriage be deemed and held to be legitimate," the General Assembly clearly intended that the child should be treated as a child born in lawful wedlock in determining the rights and duties of parent and child as to custody and support. In re Doe, 231 N.C. 1, 56 S.E.2d 8 (1949).

Where the reputed father of a child marries the child's mother after its birth, such child is deemed legitimate, just as if it had been born in lawful wedlock, and such child is a minor child of the marriage within the purview of the statute relating to custody and support of children in divorce; thus, the father may be required to furnish support for such child upon motion made either before or after decree of divorce. Carter v. Carter, 232 N.C. 614, 61 S.E.2d 711 (1950).

Child Has Same Right to Inherit As If Born in Lawful Wedlock. - A legitimated child shall have the same right to inherit by, through and from his father and mother as if such child had been born in lawful wedlock. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

Including Right to Inherit from Collateral Relations. - The legislature intended to confer upon the legitimated child the same right to inherit from collateral relations as it would have had if it had been born in lawful wedlock. Greenlee v. Quinn, 255 N.C. 601, 122 S.E.2d 409 (1961).

As to inheritance from collateral relations under former law, see In re Estate of Wallace, 197 N.C. 334, 148 S.E. 456 (1929).

Effect of Marriage on Child's Legitimacy under Former Law. - Prior to the passage of this section, where, by the laws of the domicile of the parents at the time of the birth of their illegitimate child and of their marriage, their marriage legitimated him, the legitimacy attached at the time of the marriage, he being a minor, and followed him wherever he goes. Fowler v. Fowler, 131 N.C. 169, 42 S.E. 563 (1902).

Prior to the passage of this section in 1917, marriage of the parents did not legitimate the previous offspring. Ashe v. Camp Mfg. Co., 154 N.C. 241, 70 S.E. 295 (1911).

Relationship to Actions for Custody - Father of a child born out of wedlock who sought custody of the child under G.S. 50-13.1(a) was treated as a third party as he had not legitimated the child pursuant to G.S. 49-10, 49-12, or 49-12.1 or had his paternity adjudicated under G.S. 49-14. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Applied in Myers v. Myers, 39 N.C. App. 201, 249 S.E.2d 853 (1978); DOT v. Fuller, 76 N.C. App. 138, 332 S.E.2d 87 (1985); Batcheldor v. Boyd, 119 N.C. App. 204, 458 S.E.2d 1 (1995).

Cited in Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662 (1940); Herndon v. Robinson, 57 N.C. App. 318, 291 S.E.2d 305 (1982); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re R.R., 180 N.C. App. 628, 638 S.E.2d 502 (2006).


§ 49-12.1. Legitimation when mother married.

  1. 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.
  2. The presumption of legitimacy can be overcome by clear and convincing evidence.
  3. 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 after determination that the change is in the best interests of the child.
  4. The effect of legitimation under this section shall be the same as provided by G.S. 49-11.
  5. 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 after determination that the change is in the best interests of the child, changing the surname of the child.

History

(1991, c. 667, s. 2; 1991 (Reg. Sess., 1992), c. 1030, s. 15; 1997-433, s. 4.9; 1998-17, s. 1; 2019-42, s. 1.)

Editor's Note. - Session Laws 2019-42, s. 4, made the insertion of "after determination that the change is in the best interests of the child” in subsections (c) and (e) of this section by Session Laws 2019-42, s. 1, effective June 21, 2019, and applicable to birth certificates issued on or after that date.

Effect of Amendments. - Session Laws 2019-42, s. 1, inserted "after determination that the change is in the best interests of the child" in subsections (c) and (e). For effective date and applicability, see editor's note.

Legal Periodicals. - For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Inquiry in G.S. 49-10 and G.S. 49-12.1 is whether a putative father is the biological father of a minor child such that the rights and responsibilities inherent in the relationship between father and child may be acknowledged. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

"Best Interest of the Child" Inquiry Not Required. - North Carolina's General Assembly has not required a best interest of the child inquiry in the context of a legitimation proceeding. While the General Assembly has specifically required such an inquiry under G.S. 50-13.2 and G.S. 7B-1110, and Chapter 48, its failure to mandate a best interest inquiry in connection with G.S. 49-10 and G.S. 49-12.1 is clear evidence of its intent that no such inquiry is required in this context. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Marital Presumption Rebuttable. - In the context of a custody dispute between the mother and her husband or former spouse, concerning a child born during their lawful marriage, the marital presumption is rebuttable only upon a showing that another man has formally acknowledged paternity, or has been adjudicated to be the father of the child. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720 (1996).

Relationship to Actions for Custody. - Father of a child born out of wedlock who sought custody of the child under G.S. 50-13.1(a) was treated as a third party as he had not legitimated the child pursuant to G.S. 49-10, 49-12, or 49-12.1 or had his paternity adjudicated under G.S. 49-14. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Guardian Ad Litem Must be Appointed for Minor Child in Legitimacy Proceeding. - G.S. 49-10 specifies the procedures to be followed in a proceeding pursuant to G.S. 49-12.1, and provides that a child is a necessary party to a legitimation proceeding. G.S. 49-12.1(a) states specifically that if the child is a minor, a guardian ad litem must be appointed to represent the child; however, regardless of whether G.S. 49-12.1 required this, appointment of a guardian ad litem for the minor child is mandated by G.S. 1A-1, N.C. R. Civ. P. 17. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Termination of Parental Rights. - No evidence supported terminating a father's parental rights for failure to legitimate the children because no evidence was adduced showing (1) the children were born out of wedlock or, (2) when the petition was filed, the father did not file a paternity affidavit or petition to legitimate the children, legitimate the children by marrying the children's mother, or establish paternity in court, and (3) a proffer that the father did not pay support or provide gifts or clothes since the children were in foster care did not suffice. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

Cited in Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).


§ 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. The surname of the child shall remain the same except if the mother and father agree and request that the child's surname be changed under G.S. 130A-118 or the court orders a change in surname after determination that the change is in the best interests of the child.

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. The surname of the child shall remain the same except if the mother and father agree and request the child's surname be changed under G.S. 130A-118.

History

(1947, c. 663, s. 3; 1955, c. 951, s. 2; 2019-42, s. 2.)

Cross References. - As to new birth certificate when mother is married, see G.S. 49-12.1.

As to amendment of birth certificates by State Registrar on proof of marriage of unwed parents, see G.S. 130A-118.

Editor's Note. - Session Laws 2019-42, s. 4, made the amendment to this section by Session Laws 2019-42, s. 2, effective June 21, 2019, and applicable to birth certificates issued on or after that date.

Effect of Amendments. - Session Laws 2019-42, s. 2, deleted "and change the surname of the child so that it will be the same as the surname of the father" at the end of the first sentence and added the second sentence in both paragraphs. For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "'We Are Family': Valuing Associationalism in Disputes Over Children's Surnames," see 75 N.C.L. Rev. 1625 (1997).

CASE NOTES

The name change requirement of this section is invalid. Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981).

The valid purpose served by G.S. 49-10 and this section of establishing the filial relationship between illegitimate children and their fathers is not enhanced, advanced or served in any useful or justifiable way by the additional requirement that the child's surname be changed to that of the father; such a requirement denies the mother of an illegitimate child the equal protection of the laws, and because it requires arbitrary action on the part of an agency of the State, it denies such mothers a protected liberty interest without due process of law. Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981).

G.S. 49-12 in Pari Materia. - G.S. 49-12 and this section regulate the family circle and define the rights and responsibilities of members of the circle, and must be construed in pari materia. Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822 (1979).

Defendant Estopped from Collateral Attack on Own Admission of Paternity. - Despite the fact that defendant-husband apparently made a false affidavit of paternity in obtaining a new birth certificate for the child under this section, he was estopped from collaterally attacking his admission of paternity in a later proceeding for support. Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822 (1979).

Applied in Myers v. Myers, 39 N.C. App. 201, 249 S.E.2d 853 (1978).

Cited in Lewis v. Stitt, 86 N.C. App. 103, 356 S.E.2d 398 (1987); Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).


§ 49-13.1: Repealed by Session Laws 2004-203, s. 3, effective August 17, 2004.

ARTICLE 3. Civil Actions Regarding Children Born Out of Wedlock.

Sec.

§ 49-14. Civil action to establish paternity; motion to set aside paternity.

  1. 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.
  2. Proof of paternity pursuant to this section shall be by clear, cogent, and convincing evidence.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. Notwithstanding the time limitations of G.S. 1A-1, Rule 60 of the North Carolina Rules of Civil Procedure, or any other provision of law, an order of paternity may be set aside by a trial court if each of the following applies:
    1. The paternity order was entered as the result of fraud, duress, mutual mistake, or excusable neglect.
    2. Genetic tests establish the putative father is not the biological father of the child.

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.

The burden of proof in any motion to set aside an order of paternity shall be on the moving party. Upon proper motion alleging fraud, duress, mutual mistake, or excusable neglect, the court shall order the child's mother, the child whose parentage is at issue, and the putative father to submit to genetic paternity testing pursuant to G.S. 8-50.1(b1). If the court determines, as a result of genetic testing, the putative father is not the biological father of the child and the order of paternity was entered as a result of fraud, duress, mutual mistake, or excusable neglect, the court may set aside the order of paternity. Nothing in this subsection shall be construed to affect the presumption of legitimacy where a child is born to a mother and the putative father during the course of a marriage.

History

(1967, c. 993, s. 1; 1973, c. 1062, s. 3; 1977, c. 83, s. 2; 1981, c. 599, s. 14; 1985, c. 208, ss. 1, 2; 1993, c. 333, s. 3; 1995, c. 424, ss. 1, 2; 1997-154, s. 1; 1997-433, ss. 4.2, 4.10; 1998-17, s. 1; 2005-389, s. 3; 2011-328, s. 1.)

Cross References. - As to motion or claim for relief from child support order based on finding of nonpaternity, see G.S. 50-13.13.

Effect of Amendments. - Session Laws 2005-389, s. 3, effective December 13, 2005, deleted "certified" preceding "copy of a certificate" in the second sentence of subsection (a).

Session Laws 2011-328, s. 1, effective January 1, 2012, added "motion to set aside paternity" in the section catchline; and added subsection (h). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For note on constitutional law and an illegitimate child's paternal inheritance rights, see 16 Wake Forest L. Rev. 205 (1980).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For note on a default not constituting an admission of facts for purposes of summary judgment, see 17 Wake Forest L. Rev. 49 (1981).

For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For survey of constitutional law in 1982, see 61 N.C.L. Rev. 1052 (1983).

For 1984 survey, "Intestate Succession of Illegitimate Children in North Carolina," see 63 N.C.L. Rev. 1274 (1985).

For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Editor's Note. - Some of the cases annotated below were decided prior to the 1993 amendment to G.S. 49-14, which, inter alia, changed the evidentiary standard from beyond a reasonable doubt to clear, cogent and convincing evidence.

Constitutionality. - G.S. 29-19, G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

The statutory scheme established by G.S. 29-19 and G.S. 49-14 through 49-16 does not discriminate against illegitimate children in such a manner as to violate the equal protection clause of U.S. Const., Amend. XIV. Outlaw v. Planters Nat'l Bank & Trust Co., 41 N.C. App. 571, 255 S.E.2d 189 (1979).

For case holding the former statute of limitations under this section unconstitutional, see County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E.2d 816 (1980).

Purpose. - The legislature, by enacting this section, intended to establish a means of support for illegitimate children. Wright v. Gann, 27 N.C. App. 45, 217 S.E.2d 761, cert. denied, 288 N.C. 513, 219 S.E.2d 348 (1975).

By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

The purposes of this Article are to enable an illegitimate child to receive support from its biological father and to prevent it from becoming a public charge. County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E.2d 816 (1980).

The purpose of an action under this section is to establish the identity of the biological father of an illegitimate child so that the child's right to support may be enforced and the child will not become a public charge. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), aff'd in part and rev'd in part, 315 N.C. 523, 340 S.E.2d 408 (1986); Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744 (1994).

The legislative purpose underlying this section's paternity actions is to provide the basis or means of establishing the identity of the putative father in order to allow the courts to impose an obligation of support. Becton v. George, 90 N.C. App. 607, 369 S.E.2d 366 (1988).

Statute Inoperative After Death of Father. - Both the North Carolina legitimation and paternity statutes are inoperative after the death of the father. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806 (1995).

There are several ways to legitimate children in North Carolina: 1) verified petition filed with the superior court by the putative father, 2) subsequent marriage of the parents, or 3) civil action to establish paternity. Helms v. Young-Woodard, 104 N.C. App. 746, 411 S.E.2d 184 (1991), cert. denied, 331 N.C. 117, 414 S.E.2d 756, 506 U.S. 829, 113 S. Ct. 91, 121 L. Ed. 2d 53 (1992).

G.S. 49-2 Compared. - The issue of paternity is the entire thrust of the civil action under this section, whereas the focus of the crime punishable by G.S. 49-2 is the willful failure to pay support for an illegitimate child, not paternity, because that section does not make the mere begetting of a child a crime. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

This section and G.S. 49-15 and G.S. 49-16 abrogate the common law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Applicability of G.S. 50-13.6. - G.S. 50-13.6 does not apply to civil actions to establish paternity under this section, but would authorize an award of reasonable attorney fees for custody and support actions involving an illegitimate child whose paternity had been determined. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), aff'd in part and rev'd in part, 315 N.C. 523, 340 S.E.2d 408 (1986).

Effect of Acknowledgment of Paternity Under G.S. 110-132. - There are significant differences between an acknowledgment of paternity under G.S. 110-132 in an agreement to provide child support and the procedures governing the legitimation of a child; where father had not taken any steps to legitimate the child, by statute or judicial determination, his execution of an acknowledgment of paternity under G.S. 110-132 did not erase the common law presumption in favor of mother's custody. Rosero v. Blake, 150 N.C. App. 250, 563 S.E.2d 248, cert. granted, 356 N.C. 166, 568 S.E.2d 610 (2002).

Action Under This Section Prohibited When Child Is Legitimated. - If child is legitimated by virtue of G.S. 49-12, an action under this section cannot be maintained, as this section establishes a means of support for illegitimate children. Lewis v. Stitt, 86 N.C. App. 103, 356 S.E.2d 398 (1987).

"Out of wedlock" refers to the status of the child and not to the status of the mother. Wright v. Gann, 27 N.C. App. 45, 217 S.E.2d 761, cert. denied, 288 N.C. 513, 219 S.E.2d 348 (1975).

This section is applicable to all illegitimate children, and therefore does not preclude an illegitimate child of a married woman from instituting a suit for support. Wright v. Gann, 27 N.C. App. 45, 217 S.E.2d 761, cert. denied, 288 N.C. 513, 219 S.E.2d 348 (1975).

Enforcement of Child's Right to Support. - The illegitimate child has no statutory right to parental support through criminal proceedings; rather, such child's right to parental support is enforced by an action under this section and G.S. 49-15, which impose a support obligation on persons determined to be the parents of an illegitimate child. The function of a criminal prosecution of a parent who willfully fails to support his illegitimate child is not to compensate the illegitimate child, but to promote society's interest in preventing the parents of children from willfully leaving those children without parental support. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

Only Designated Persons Have Standing. - If the North Carolina Legislature wanted others to have the capacity to be parties in a G.S. 49-14 paternity it could have also designated those others, but it did not when it consciously changed the existing common law. Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13 (2004).

Only Parent Who Has Custody of Child May Bring Action for Support. - Although plaintiff alleged that he was the father of the child, he did not allege that he had custody, therefore under the provisions of G.S. 50-13.4, only a parent who has custody of a minor child may bring an action for its support. Becton v. George, 90 N.C. App. 607, 369 S.E.2d 366 (1988).

Siblings Do Not Have Standing. - Trial court properly disallowed intervention by child's two siblings in mother's paternity action against putative father's estate; in G.S. 49-16, the designation of who had standing to participate in a G.S. 49-14 paternity proceeding was intended to be construed as written. Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13 (2004).

A paternity suit under this section is a civil action, even though the "beyond a reasonable doubt" standard is employed. County of Lenoir ex rel. Dudley v. Dawson, 60 N.C. App. 122, 298 S.E.2d 418 (1982).

Actions to enforce the child's right to support under this section and G.S. 49-15 are civil actions. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

A suit brought for the sole purpose of establishing paternity pursuant to this section is not a criminal prosecution and cannot be considered criminal in nature simply because plaintiff must meet a higher burden of proof and establish such paternity beyond a reasonable doubt. Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980).

Confers No Per Se Right to Counsel. - The mere begetting of a child, standing alone, is not a crime in this State. It is true that a related threat of actual imprisonment, based partially upon a prior determination of paternity, may arise in subsequent criminal or civil enforcement proceedings if such becomes necessary to secure a defendant-father's support obligation to his child. However, it is plain that this uncertain "web of possibilities" concerning future sanctions or ramifications does not constitute an immediate threat of imprisonment in the initial civil paternity action itself, especially since the defendant may, in fact, prevail on the critical issue of fatherhood. Thus, there is no per se constitutional right to appointed counsel for an indigent defendant in a civil paternity suit under this section, by whomever instituted, because the necessary menace to personal liberty is clearly absent at that legal stage. Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983).

Since Only One Issue Is Presented. - Representation by legal counsel is not invariably an essential component of fairness in all child support enforcement proceedings. There is but one factual issue in a paternity action, i.e., whether the defendant is the father of the child, and practically speaking, this is not an especially complex matter. The crux of most cases is credibility: simply deciding whom to believe. Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983).

Absent Counsel, Indigent May Not Later Be Incarcerated to Enforce Support Order. - An indigent person cannot be sent to jail in any later proceeding to enforce a child support order, unless he had the benefit of legal assistance and advocacy at the proceeding in which paternity was determined. Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983).

Failure to Join Child Does Not Require Dismissal. - In a civil action to establish paternity of an alleged illegitimate child the failure to properly join that child does not justify dismissal of the action. Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744 (1994).

If the legislature had intended to require the child to be joined as a necessary party in an action under G.S. 49-14, then it would have specifically stated such, as it did in G.S. 49-10. Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744 (1994).

Trial Judge to Determine Necessity for Appointed Counsel. - The trial judge shall determine, in the first instance, what true fairness requires, in light of all of the circumstances, when an indigent makes a motion for the appointment of counsel in a civil paternity suit. The trial court should proceed with an evaluation of the vital interests at stake on both sides and a determination of the degree of actual complexity involved in the given case and the corresponding nature of defendant's peculiar problems, if any, in presenting his own defense without appointed legal assistance. The judge must then weigh the foregoing factors against the overall and strong presumption that the defendant is not entitled to the appointment of counsel in a proceeding which does not present an immediate threat to personal liberty. Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983).

Effect of Criminal Proceedings Under G.S. 49-2 upon Proceedings under This Section. - Since the parties to a previous criminal proceeding under G.S. 49-2 and civil proceedings under this section were not the same, and the State and the present plaintiff were not in privity, the defendant was not estopped in the civil action to deny paternity. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

A judgment of acquittal in a criminal prosecution under G.S. 49-2 for willful failure to support two illegitimate children was not res judicata in a county's civil action under this section to establish defendant's paternity of the two children, where the criminal judgment merely stated that defendant was found not guilty, and did not disclose whether an acquittal was entered because the judge found that defendant was not the father of the children or because he did not believe that defendant had willfully failed to provide for their reasonable support, as there was thus no showing on the record that the issue of paternity had been previously adjudicated in defendant's favor. Stephens v. Worley, 51 N.C. App. 553, 277 S.E.2d 81 (1981).

Where a criminal action has been dismissed on grounds that the statute of limitations has run, and there is an identity of interest between the plaintiffs in the criminal and civil actions so that the parties are in privity, plaintiffs in the civil action are estopped by the judgment in the criminal action, even where the law has changed since the criminal action so as to allow proof of paternity by blood test. Settle ex rel. Sullivan v. Beasley, 59 N.C. App. 735, 298 S.E.2d 62 (1982), rev'd on other grounds, 309 N.C. 616, 308 S.E.2d 288 (1983).

General verdict of not guilty, upon charges of willful neglect and refusal to provide adequate support of an illegitimate child, did not operate as res judicata on the issue of paternity in subsequent action to establish paternity and require support of an illegitimate child. Sampson County ex rel. Child Support Enforcement Agency ex rel. McPherson v. Stevens, 91 N.C. App. 524, 372 S.E.2d 340 (1988).

Effect of Prior Determination in Action by County to Recover Support from Father. - Child's interests in having his paternity determined were not so identified with a county's interest in a prior action to recover from the father amounts paid by the county for child support that they were determinable in that action. The interest of the county, the real party in interest in the prior suit, was solely economic, as it was only interested in requiring the responsible parent to support the child and to recoup the amounts that it had paid for such support. The child, on the other hand, had more at stake in the later suit seeking support from his father, as the paternity adjudication would dramatically affect his personal interests. Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983).

No Certified Copies of Birth Certificates Attached to Petition. - In action under Uniform Reciprocal Enforcement of Support Act, where the record disclosed that no certified copies of the birth certificates of the alleged children-obligees were attached to plaintiffs' petition, court was without subject matter jurisdiction to adjudicate defendant's paternity. Reynolds v. Motley, 96 N.C. App. 299, 385 S.E.2d 548 (1989), (decided under prior law).

In actions under this section, the jury decides only the factual issue of paternity, and the court decides what payments should be awarded for the support of the child. Searcy v. Justice, 20 N.C. App. 559, 202 S.E.2d 314 (1974).

Claim of Being Tricked into Fathering Child Not Appropriate as Defense. - Argument of defendant in paternity proceeding in which he counterclaimed against plaintiff for fraud that he was tricked into fathering a child and should not bear the financial responsibility for it was not appropriate in a civil action to establish paternity, either as a defense or a counterclaim. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), aff'd in part and rev'd in part, 315 N.C. 523, 340 S.E.2d 408 (1986).

Clear, Cogent & Convincing Standard. - The plaintiff's testimony at trial that she had sexual contact with no man other than defendant either in 1990 or 1991, expert testimony regarding the likelihood of conception given the number of sexual encounters between the two, and exhibits indicating that the child bears a strong resemblance to the defendant were sufficient to support the trial court's conclusion that defendant was the child's biological parent. Brown v. Smith, 137 N.C. App. 160, 526 S.E.2d 686 (2000).

Proof Beyond a Reasonable Doubt. - In a paternity action under this section, plaintiff must prove beyond a reasonable doubt that defendant is the father of the child whose paternity is in issue. Thus, in a paternity case, in order to affirm a JNOV, the court must conclude as a matter of law that the jury could have had no reasonable doubt that defendant was the biological father of plaintiff 's son. Smith v. Price, 74 N.C. 413, 340 S.E.2d 408 (1986).

Testimony by Expert Concerning Paternity. - Although it may be proper for a qualified physician to testify concerning the result of a defendant's blood test and concerning the use and application of the paternity index, it is not proper to allow the expert to state his opinion concerning paternity, as such an opinion is of no assistance to the trier of fact. The jury is equally capable of weighing the genetic factors along with the nongenetic circumstances to determine the ultimate probability of paternity. Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992).

Assertion by Court as to Paternity of Child Held Prejudicial Error. - In flatly asserting that the person who had had intercourse with plaintiff 10 lunar months before the birth of her child would be the father of her child, the court ignored the possibility of a premature birth or an unusually long pregnancy, and thus committed prejudicial error. Searcy v. Justice, 20 N.C. App. 559, 202 S.E.2d 314 (1974).

Visitation Rights of Father. - The principle that the father of an illegitimate child is not entitled to visitation privileges absent consent of the mother has been abrogated by statutes as well as case law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974) (decided under prior law).

Transfer to Civil Docket for Jury Determination of Paternity. - Resolution by a jury of the factual issue of paternity, when a presumption of legitimacy is involved, may be accomplished by transferring the case to the civil issue docket for trial at the next ensuing session of the superior court pursuant to G.S. 1-273 [see now G.S. 1-301.1 et seq.]. Therefore, it is not necessary to require that the putative father first file a paternity action under this section before proceeding under G.S. 49-10 to have child legitimated. In re Locklear ex rel. Jones, 314 N.C. 412, 334 S.E.2d 46 (1985) (decided under prior law).

DNA or Gene Testing. - Trial court erred in ordering DNA or gene testing subsequent to an adjudication of paternity. State ex rel. Hill v. Manning, 110 N.C. App. 770, 431 S.E.2d 207 (1993).

Relationship to Actions for Custody. - Father of a child born out of wedlock who sought custody of the child under G.S. 50-13.1(a) was treated as a third party as he had not legitimated the child pursuant to G.S. 49-10, 49-12, or 49-12.1 or had his paternity adjudicated under G.S. 49-14. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Priority of Legitimation Action over Paternity Action. - When a putative father filed both an action for custody in the district court, which was converted into a paternity action, and a legitimation action in the superior court, the legitimation action took priority, as legitimation vested greater rights in the parent and child than an order adjudicating paternity; therefore, the court in which the custody action was filed was divested of jurisdiction. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

Award of Attorney's Fees to the Putative Father. - Trial court erred by awarding a putative father attorney's fees under G.S. 50-13.6, once the putative father was proven not to be the biological father of a child because G.S. 50-13.6 did not apply to civil actions to establish paternity under G.S. 49-14. Instead, costs, including attorney's fees, involved in prosecuting a paternity action were to be awarded under G.S. 6-21(10). Guilford County ex rel. Holt v. Puckett, 191 N.C. App. 693, 664 S.E.2d 362 (2008).

Paternity Not Required for Child to Inherit Under Life Insurance Policy. - While paternity had to be established for an illegitimate child to inherit from a father who died intestate, North Carolina had no statute requiring that paternity be established for an illegitimate child to benefit from a life insurance policy, and the policy at issue in defendant claimant's case did not exclude illegitimate children unless paternity had been judicially established. Fort Dearborn Life Ins. Co. v. Turner, 521 F. Supp. 2d 499 (E.D.N.C. Oct. 3, 2007).

Decedent's Paternity. - Plaintiff complied with G.S. 49-14(d) by presenting a DNA test, establishing the decedent's paternity at a probability of 99.99%. Because there was no evidence in the record contradicting the evidence offered by plaintiff, the trial court did not err in granting summary judgment on her paternity claim. Swint v. Doe, 265 N.C. App. 104, 827 S.E.2d 309 (2019).

Termination of Parental Rights. - No evidence supported terminating a father's parental rights for failure to legitimate the children because no evidence was adduced showing (1) the children were born out of wedlock or, (2) when the petition was filed, the father did not file a paternity affidavit or petition to legitimate the children, legitimate the children by marrying the children's mother, or establish paternity in court, and (3) a proffer that the father did not pay support or provide gifts or clothes since the children were in foster care did not suffice. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

Applied in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984); Wake County ex rel. Denning v. Ferrell, 71 N.C. App. 185, 321 S.E.2d 913 (1984); Helms v. Landry, 194 N.C. App. 787, 671 S.E.2d 347 (2009), review denied, stay denied, 363 N.C. 125, 675 S.E.2d 364 (2009).

Cited in Durham County Dep't of Social Servs. v. Williams, 52 N.C. App. 112, 277 S.E.2d 865 (1981); Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 63 N.C. App. 432, 305 S.E.2d 207 (1983); State v. Caudill, 68 N.C. App. 268, 314 S.E.2d 592 (1984); In re Locklear ex rel. Jones, 66 N.C. App. 722, 311 S.E.2d 691 (1984); Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44 (1985); State ex rel. Pender County Child Support Enforcement Agency ex rel. Crews v. Parker, 82 N.C. App. 419, 346 S.E.2d 270 (1986); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010); In re Estate of Williams, 246 N.C. App. 76, 783 S.E.2d 253 (2016).


§ 49-15. Custody and support of children born out of wedlock when paternity established.

Upon and after the establishment of paternity pursuant to G.S. 49-14 of a child born out of wedlock, 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 the 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.

History

(1967, c. 993, s. 1; 2013-198, s. 23.)

Effect of Amendments. - Session Laws 2013-198, s. 23, effective June 26, 2013, substituted "children born out of wedlock" for "illegitimate children" in the section heading; and substituted "pursuant to G.S. 49-14 of a child born out of wedlock" for "of an illegitimate child pursuant to G.S. 49-14" and substituted "the" for "such" preceding "father and mother."

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For survey of constitutional law in 1982, see 61 N.C.L. Rev. 1052 (1983).

For article, "Custody of the Illegitimate Child," see 18 N.C. Cent. L.J. 18 (1989).

For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Constitutionality. - G.S. 29-19, G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

The statutory scheme established by G.S. 29-19 and G.S. 49-14 through 49-16 does not discriminate against illegitimate children in such a manner as to violate the equal protection clause of U.S. Const., Amend. XIV. Outlaw v. Planters Nat'l Bank & Trust Co., 41 N.C. App. 571, 255 S.E.2d 189 (1979).

Purpose of Procedure for Legitimation. - By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

This section and G.S. 49-14 and G.S. 49-16 abrogate the common law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Effect of Acknowledgment of Paternity Under G.S. 110-132. - There are significant differences between an acknowledgment of paternity under G.S. 110-132 in an agreement to provide child support and the procedures governing the legitimation of a child; where father had not taken any steps to legitimate the child, by statute or judicial determination, his execution of an acknowledgment of paternity under G.S. 110-132 did not erase the common law presumption in favor of mother's custody. Rosero v. Blake, 150 N.C. App. 250, 563 S.E.2d 248, cert. granted, 356 N.C. 166, 568 S.E.2d 610 (2002).

Priority of Legitimation Action over Paternity Action. - When a putative father filed both an action for custody in the district court, which was converted into a paternity action, and a legitimation action in the superior court, the legitimation action took priority, as legitimation vested greater rights in the parent and child than an order adjudicating paternity; therefore, the court in which the custody action was filed was divested of jurisdiction. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872 (2002), cert. denied, - N.C. - , 599 S.E.2d 408 (2004).

How Rights Determined and Enforced. - This section contemplates that parents' rights may be determined and enforced in an action brought pursuant to G.S. 49-14, and does not contemplate the bringing of a separate action for that purpose pursuant to G.S. 50-13.1 et seq., which relates to the custody and support of legitimate children. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

Child's Welfare Is Primary Consideration. - Once paternity is established, the proper custody and amount of support are determined in the same manner as for a legitimate child. In making this determination, the court has considerable discretion, but the welfare of the child is the primary consideration. To determine the rights of an illegitimate child any differently would violate the illegitimate child's constitutional right to equal protection of the law. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985), aff'd in part and rev'd in part, 315 N.C. 523, 340 S.E.2d 408 (1986).

The illegitimate child has no statutory right to parental support through criminal proceedings; rather, such child's right to parental support is enforced by an action under this section and G.S. 49-14, which impose a support obligation on persons determined to be the parents of an illegitimate child. The function of a criminal prosecution of a parent who willfully fails to support his illegitimate child is not to compensate the illegitimate child, but to promote society's interest in preventing the parents of children from willfully leaving those children without parental support. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

Actions to enforce the child's right to support under this section and G.S. 49-14 are civil actions. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, appeal dismissed and cert. denied, 306 N.C. 559, 294 S.E.2d 225 (1982).

Retroactive Child Support Awards Authorized. - Trial court was not precluded as a matter of law from awarding retroactive child support under this section. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

An action to enforce liability under this section is barred after three years under G.S. 1-52(2). Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

Statute of Limitation Applies to Each Expenditure. - Each time a mother makes an expenditure reasonably incurred for the support of a child, such expenditure creates in her a new right to reimbursement, so that the statute of limitation applicable to proceedings hereunder, G.S. 1-52(2), begins to run against each expenditure on the date when the expenditure was made. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

The doctrine of laches is not applicable to an action for retroactive child support since the public policy concerns about stale claims are already adequately served by the three-year statute of limitations set forth in G.S. 1-52(2). Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

Extent of Recovery for Past Expenditures. - Assuming adequate proof of the expenditures under G.S. 50-13.4(c), the plaintiff-mother could recover reimbursement for her past support expenditures (1) to the extent she paid the father's share of such expenditures, and (2) to the extent the expenditures occurred three years or less before August 8, 1986, the date she filed her claim for child support. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, cert. denied, 325 N.C. 709, 388 S.E.2d 460 (1989).

Failure to Attach Certified Copies of Birth Certificates to Petition. - In action under Uniform Reciprocal Enforcement of Support Act, where the record disclosed that no certified copies of the birth certificates of the alleged children-obligees were attached to plaintiff's petition, court was without subject matter jurisdiction to adjudicate defendants' paternity. Reynolds v. Motley, 96 N.C. App. 299, 385 S.E.2d 548 (1989).

Court Decides Payments to Be Awarded. - In actions under G.S. 49-14, the jury decides only the factual issue of paternity, and the court decides what payments should be awarded for the support of the child. Searcy v. Justice, 20 N.C. App. 559, 202 S.E.2d 314 (1974).

Effect of Criminal Proceedings upon Proceedings to Establish Paternity. - General verdict of not guilty, upon charges of willful neglect and refusal to provide adequate support of an illegitimate child, did not operate as res judicata on the issue of paternity in subsequent action to establish paternity and require support of an illegitimate child. Sampson County ex rel. Child Support Enforcement Agency ex rel. McPherson v. Stevens, 91 N.C. App. 524, 372 S.E.2d 340 (1988).

Visitation Rights of Father. - The principle that the father of an illegitimate child is not entitled to visitation privileges absent consent of the mother has been abrogated by statutes as well as case law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

The district court was authorized to grant visitation privileges to father and to punish the mother for refusing to allow father to visit his illegitimate child. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Reimbursement by State upon Receipt of Test Results. - Conclusion that defendant was not child's father and that the State was obligated to reimburse defendant for the monies it illegally garnished from his pay arose as a matter of law from paternity test results, which plaintiff and the court accepted as binding when order was entered, and stating those conclusions and ending the case properly in compliance with the law was the court's duty. State ex rel. Blossom v. Murray, 103 N.C. App. 653, 406 S.E.2d 302 (1991).

Applied in Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981).

Cited in Joyner v. Lucas, 42 N.C. App. 541, 257 S.E.2d 105 (1979); Wilkes County ex rel. Child Support Enforcement Agency ex rel. Nations v. Gentry, 63 N.C. App. 432, 305 S.E.2d 207 (1983); State ex rel. Terry v. Marrow, 71 N.C. App. 170, 321 S.E.2d 575 (1984); In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985); Smith v. Davis, 88 N.C. App. 557, 364 S.E.2d 156 (1988); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).


§ 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,
    1. In the county where the mother resides or is found,
    2. In the county where the putative father resides or is found, or
    3. In the county where the child resides or is found.

History

(1967, c. 993, s. 1; 1969, c. 982; 1975, c. 54, s. 2.)

Legal Periodicals. - For casenote, "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Constitutionality. - G.S. 29-19, G.S. 49-10 through 49-12 and G.S. 49-14 through 49-16, construed together, do not violate the equal protection clause of the United States Constitution. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

The statutory scheme established by G.S. 29-19 and G.S. 49-14 through 49-16 does not discriminate against illegitimate children in such a manner as to violate the equal protection clause of U.S. Const., Amend. XIV. Outlaw v. Planter's Nat'l Bank & Trust Co., 41 N.C. App. 571, 255 S.E.2d 189 (1979).

Purpose of Procedure for Legitimation. - By specifying the manner and time in which an illegitimate child may establish his paternity, this State has sought (1) to mitigate the hardships created by former law (which permitted illegitimate children to inherit only from the mother and from each other); (2) to equalize, insofar as practical, the inheritance rights of legitimate and illegitimate children; and (3) at the same time, to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws. Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979).

This section and G.S. 49-14 and G.S. 49-15 abrogate the common law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Only Designated Persons Have Standing. - If the North Carolina Legislature wanted others to have the capacity to be parties in a G.S. 49-14 paternity it could have also designated those others, but it did not when it consciously changed the existing common law. Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13 (2004).

Siblings Do Not Have Standing. - Trial court properly disallowed intervention by child's two siblings in mother's paternity action against putative father's estate; in G.S. 49-16, the designation of who had standing to participate in a G.S. 49-14 paternity proceeding was intended to be construed as written. Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13 (2004).

Visitation Rights of Father. - The principle that the father of an illegitimate child is not entitled to visitation privileges absent consent of the mother has been abrogated by statutes as well as case law. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (1974).

Cited in Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976); Joyner v. Lucas, 42 N.C. App. 541, 257 S.E.2d 105 (1979); Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744 (1994); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re Williams, 208 N.C. App. 148, 701 S.E.2d 399 (2010).


§ 49-17. Jurisdiction over nonresident or nonpresent persons.

  1. The act of sexual intercourse within this State constitutes sufficient minimum contact with this forum for purposes of subjecting the person or persons participating therein to the jurisdiction of the courts of this State for actions brought under this Article for paternity and support of any child who may have been conceived as a result of such act.
  2. The jurisdictional basis in subsection (a) of this section shall be construed in addition to, and not in lieu of, any basis or bases for jurisdiction within G.S. 1-75.4.

History

(1979, c. 542.)

CASE NOTES

Constitutionality. - This section satisfies the first prong of the test set out in Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977) by creating special jurisdiction under very limited circumstances; on its face, this statute is constitutionally sound and although the language in this section which refers to "minimum contacts" is misleading and confusing in the context of the Dillon requirements, the intent of the statute is not to abrogate the second prong of the Dillon test; rather, the statute simply creates special jurisdiction in certain situations. Cochran v. Wallace, 95 N.C. App. 167, 381 S.E.2d 853 (1989).

Due Process Requirements Satisfied. - In paternity suit, where the trial court adequately inquired into the defendant's contacts with this State and so set those findings out in its order without objection of the defendant, the hearing which was held on defendant's motion to dismiss for lack of personal jurisdiction comported with all due process requirements. Cochran v. Wallace, 95 N.C. App. 167, 381 S.E.2d 853 (1989).

North Carolina courts have a legitimate interest in protecting our citizens under circumstances such as those enumerated in this section. Cochran v. Wallace, 95 N.C. App. 167, 381 S.E.2d 853 (1989).