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 N.C. LEXIS 685 (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 N.C. LEXIS 1762 (1984).

CASE NOTES

Analysis

• I. In General
• II. Elements of Offense
• III. Affidavit, Warrant and Indictment
• IV. Evidence and Testimony
• V. Instructions, Submission to Jury, and Verdict

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, 1982 N.C. App. LEXIS 2586 (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 v. Barnes, 80 N.C. App. 552, 342 S.E.2d 579, 1986 N.C. App. LEXIS 2223 (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 N.C. LEXIS 393 (1898); State v. Perry, 122 N.C. 1043 , 30 S.E. 139, 1898 N.C. LEXIS 395 (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 N.C. LEXIS 242 (1938).

Maximum time for prosecution was formerly six years from birth. State v. Killian, 217 N.C. 339 , 7 S.E.2d 702, 1940 N.C. LEXIS 236 (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 N.C. LEXIS 574 (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 N.C. LEXIS 100 (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 N.C. LEXIS 531 (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 N.C. LEXIS 309 (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 N.C. LEXIS 1061 (1967).

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 N.C. LEXIS 531 (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 N.C. LEXIS 402 (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 N.C. LEXIS 402 (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 N.C. LEXIS 1046 (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 N.C. LEXIS 531 (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 N.C. App. LEXIS 1921 (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 N.C. LEXIS 379 (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 N.C. LEXIS 154 (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 N.C. LEXIS 342 (1925).

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 N.C. App. LEXIS 809 (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 N.C. LEXIS 1762 (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 N.C. LEXIS 1762 (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 N.C. LEXIS 599 (1970); State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523, 1976 N.C. App. LEXIS 1921 (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 N.C. App. LEXIS 1921 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (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 N.C. LEXIS 1187 (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 N.C. LEXIS 599 (1970); State v. Camp, 286 N.C. 148 , 209 S.E.2d 754, 1974 N.C. LEXIS 1187 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (1970).

This section seems to contemplate the submission of issues. State v. Ellis, 262 N.C. 446 , 137 S.E.2d 840, 1964 N.C. LEXIS 673 (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 N.C. LEXIS 564 (1952), overruled in part, State v. Ellis, 262 N.C. 446 , 137 S.E.2d 840, 1964 N.C. LEXIS 673 (1964).

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 N.C. LEXIS 531 (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 N.C. LEXIS 531 (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 N.C. LEXIS 1046 (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 N.C. App. LEXIS 3123 (1983), aff'd in part, modified, 311 N.C. 580 , 319 S.E.2d 224, 1984 N.C. LEXIS 1762 (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 N.C. LEXIS 531 (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 N.C. App. LEXIS 2278 (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 N.C. LEXIS 389 (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 N.C. App. LEXIS 2745 (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 N.C. LEXIS 14 (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 N.C. LEXIS 3 (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 N.C. LEXIS 298 (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 N.C. LEXIS 643 (1949).

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 N.C. LEXIS 80 (1838); State v. Cannady, 78 N.C. 539 , 1878 N.C. LEXIS 272 (1878); State v. Parsons, 115 N.C. 730 , 20 S.E. 511, 1894 N.C. LEXIS 302 (1894); State v. Wynne, 116 N.C. 981 , 21 S.E. 35, 1895 N.C. LEXIS 311 (1895); State v. Nelson, 119 N.C. 797 , 25 S.E. 863, 1896 N.C. LEXIS 378 (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 N.C. LEXIS 40 (1874); State v. Wynne, 116 N.C. 981 , 21 S.E. 35, 1895 N.C. LEXIS 311 (1895); State v. Morgan, 141 N.C. 726 , 53 S.E. 142, 1906 N.C. LEXIS 153 (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 N.C. LEXIS 233 (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 N.C. LEXIS 564 (1970), overruled in part, Dantzic v. State, 279 N.C. 212 , 182 S.E.2d 563, 1971 N.C. LEXIS 770 (1971).

Six months is the maximum sentence permitted by this section. State v. Ellis, 262 N.C. 446 , 137 S.E.2d 840, 1964 N.C. LEXIS 673 (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 N.C. LEXIS 92 (1907).

For case in which sentence was held excessive, see State v. Nelson, 119 N.C. 797 , 25 S.E. 863, 1896 N.C. LEXIS 378 (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 N.C. LEXIS 534 (1950). See also, State v. Robinson, 248 N.C. 282 , 103 S.E.2d 376, 1958 N.C. LEXIS 489 (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 N.C. LEXIS 146 (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, 1970 N.C. App. LEXIS 1523 , aff'd, 277 N.C. 188 , 176 S.E.2d 756, 1970 N.C. LEXIS 564 (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 N.C. LEXIS 599 (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 N.C. LEXIS 599 (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 N.C. LEXIS 92 (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 N.C. LEXIS 302 (1894).

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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 2616 (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 N.C. App. LEXIS 108 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 1121 (1991), cert. denied, 506 U.S. 829, 113 S. Ct. 91, 121 L. Ed. 2d 53, 1992 U.S. LEXIS 5747 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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, 1971 N.C. App. LEXIS 1581 , cert. denied, 279 N.C. 394 , 183 S.E.2d 244, 1971 N.C. LEXIS 819 (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 N.C. App. LEXIS 926 (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 N.C. App. LEXIS 1914 (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 N.C. App. LEXIS 926 (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 N.C. LEXIS 564 (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 N.C. LEXIS 173 (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 N.C. LEXIS 1877 (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 N.C. App. LEXIS 108 (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 N.C. App. LEXIS 108 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. LEXIS 1877 (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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 888 (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 N.C. App. LEXIS 2086 (2007).

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 N.C. App. LEXIS 1164 (2018).

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 N.C. LEXIS 1248 (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 N.C. LEXIS 1248 (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 N.C. LEXIS 655 (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 N.C. LEXIS 20 (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, 1971 N.C. App. LEXIS 1581 , cert. denied, 279 N.C. 394 , 183 S.E.2d 244, 1971 N.C. LEXIS 819 (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 N.C. App. LEXIS 1914 (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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 108 (2009).

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 N.C. LEXIS 1248 (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 N.C. LEXIS 294 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 3063 (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 N.C. App. LEXIS 2654 (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 N.C. LEXIS 228 (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 N.C. LEXIS 125 (1928); Greenlee v. Quinn, 255 N.C. 601 , 122 S.E.2d 409, 1961 N.C. LEXIS 655 (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 N.C. LEXIS 228 (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 N.C. LEXIS 594 (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 N.C. LEXIS 294 (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 N.C. LEXIS 594 (1950); Chambers v. Chambers, 43 N.C. App. 361, 258 S.E.2d 822, 1979 N.C. App. LEXIS 3063 (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 N.C. App. LEXIS 921 (1992), writ denied, 333 N.C. 254 , 426 S.E.2d 700, 1993 N.C. LEXIS 47 (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 N.C. LEXIS 210 (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 Jane Doe, 231 N.C. 1 , 56 S.E.2d 8, 1949 N.C. LEXIS 475 (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 N.C. LEXIS 594 (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 N.C. LEXIS 655 (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 N.C. LEXIS 655 (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 N.C. LEXIS 228 (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 N.C. LEXIS 262 (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 N.C. LEXIS 251 (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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 2004).

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 N.C. App. LEXIS 108 (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 N.C. App. LEXIS 108 (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 N.C. App. LEXIS 73 (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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 108 (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 N.C. App. LEXIS 1164 (2018).

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 N.C. App. LEXIS 2616 (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 N.C. App. LEXIS 2616 (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 N.C. App. LEXIS 3063 (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 N.C. App. LEXIS 3063 (1979).

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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 2646 (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 N.C. App. LEXIS 2806 (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, 1975 N.C. App. LEXIS 1746 , cert. denied, 288 N.C. 513 , 219 S.E.2d 348, 1975 N.C. LEXIS 1029 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 2806 (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 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986); Smith v. Bumgarner, 115 N.C. App. 149, 443 S.E.2d 744, 1994 N.C. App. LEXIS 555 (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 N.C. App. LEXIS 567 (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 N.C. App. LEXIS 926 (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 N.C. App. LEXIS 1121 (1991), cert. denied, 506 U.S. 829, 113 S. Ct. 91, 121 L. Ed. 2d 53, 1992 U.S. LEXIS 5747 (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 N.C. App. LEXIS 2278 (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 N.C. App. LEXIS 1947 (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 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (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, 2002 N.C. App. LEXIS 509 (2002), rev'd, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003).

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 N.C. App. LEXIS 2654 (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, 1975 N.C. App. LEXIS 1746 , cert. denied, 288 N.C. 513 , 219 S.E.2d 348, 1975 N.C. LEXIS 1029 (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, 1975 N.C. App. LEXIS 1746 , cert. denied, 288 N.C. 513 , 219 S.E.2d 348, 1975 N.C. LEXIS 1029 (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, 1982 N.C. App. LEXIS 2586 (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 N.C. App. LEXIS 1515 (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 N.C. App. LEXIS 567 (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 N.C. App. LEXIS 1515 (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 N.C. App. LEXIS 3279 (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, 1982 N.C. App. LEXIS 2586 (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 N.C. LEXIS 991 (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 N.C. LEXIS 1441 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965, 1983 U.S. LEXIS 2966 (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 N.C. LEXIS 1441 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965, 1983 U.S. LEXIS 2966 (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 N.C. LEXIS 1441 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965, 1983 U.S. LEXIS 2966 (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 N.C. App. LEXIS 555 (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 N.C. App. LEXIS 555 (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 N.C. LEXIS 1441 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965, 1983 U.S. LEXIS 2966 (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 N.C. LEXIS 1046 (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 N.C. App. LEXIS 2278 (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 N.C. App. LEXIS 3198 (1982), rev'd, 309 N.C. 616 , 308 S.E.2d 288, 1983 N.C. LEXIS 1438 (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 N.C. App. LEXIS 820 (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 N.C. LEXIS 1438 (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 N.C. App. LEXIS 1009 (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 N.C. App. LEXIS 2493 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 955 (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 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (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 N.C. App. LEXIS 253 (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 N.C. App. LEXIS 800 (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 N.C. App. LEXIS 2493 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 955 (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 N.C. App. LEXIS 1947 (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, 314 N.C. 412 , 334 S.E.2d 46, 1985 N.C. LEXIS 1877 (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 N.C. App. LEXIS 681 (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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. App. LEXIS 1471 (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, 2007 U.S. Dist. LEXIS 84333 (E.D.N.C. 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 N.C. App. LEXIS 331 (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 N.C. App. LEXIS 1164 (2018).

Motion to challenge denied. —

Trial court erred by ordering paternity testing, because defendant did not file a proper motion to challenge the prior adjudication of paternity and failed to demonstrate any legal basis for requesting paternity testing; N.C. Gen. Stat. § 49-14(h) would not be applicable to defendant if the child was born during his marriage to mother and nothing in the record established this fact. Defendant’s motion to modify did not allege changed circumstances as required by N.C. Gen. Stat. § 50-13.7; once paternity has been established, the child support enforcement agency should not have to litigate the claim again unless defendant has presented a valid legal basis to challenge the prior adjudication. Guilford Cty. ex rel. Mabe v. Mabe, 2021-NCCOA-524, 279 N.C. App. 561, 866 S.E.2d 305, 2021- NCCOA-524, 2021 N.C. App. LEXIS 528 (2021).

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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 2646 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 1947 (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, 2002 N.C. App. LEXIS 509 (2002), rev'd, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003).

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 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 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 N.C. LEXIS 1046 (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 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (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, 1982 N.C. App. LEXIS 2586 (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, 1982 N.C. App. LEXIS 2586 (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, 1989 N.C. App. LEXIS 671 (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 N.C. LEXIS 1046 (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 N.C. LEXIS 1046 (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, 1989 N.C. App. LEXIS 671 (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, 1989 N.C. App. LEXIS 671 (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 N.C. App. LEXIS 1009 (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 N.C. App. LEXIS 2493 , cert. denied, 285 N.C. 235 , 204 S.E.2d 25, 1974 N.C. LEXIS 955 (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 N.C. App. LEXIS 820 (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 N.C. App. LEXIS 1947 (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 N.C. App. LEXIS 1947 (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 N.C. App. LEXIS 882 (1991).

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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 2646 (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 N.C. LEXIS 1248 (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 N.C. App. LEXIS 1947 (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 N.C. App. LEXIS 1515 (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 N.C. App. LEXIS 1515 (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 N.C. App. LEXIS 1947 (1974).

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 N.C. App. LEXIS 664 (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 N.C. App. LEXIS 664 (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 N.C. App. LEXIS 664 (1989).