North Carolina Divorce Lawyers Blog
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Fathers – Natural, Legal, and Presumed

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What happens when a wife gives birth during a marriage, but the husband is not the biological father per DNA? Paternity in North Carolina is a legal issue—there are rights and responsibilities that come with being a legal father. As a primer, the common terminology in this area of law is as follows:

  • A natural father is the biological father, natural and biological are interchangeable. This father is most often the legal father, but not always.
  • A legal father is the person with legal rights and obligations as a result of being recognized as the child’s father, as determined by law.
  • A presumed father is the husband of a person who gives birth to a child during the course of marriage to the husband. This father is presumed to be the natural father, but this is a rebuttable presumption.

The term “out of wedlock” generally refers to a child born to an unmarried woman, but it can also be a child born to a married woman but fathered by a man other than her husband.[1] A petition for legitimation is one method by which the biological father may obtain certain rights and obligations related to parental status. (G.S. 49-12.1). The biological father may also institute an action to establish paternity (G.S. 49-14) of a minor child, which allows actions for custody and support of a minor child (G.S. 49-15). The common theme here is that in order for the presumed father to be contested, the natural father generally must take some action to establish paternity.

What if a juvenile action for abuse, neglect, or dependency (A/N/D) is instigated against parents, and it is later discovered from DNA testing that the child is not biologically related to the father? This alone is not grounds for removal of the father from the case. Required parties to A/N/D are the petitioner (DSS), the juvenile, and either the parents, guardians, custodians, foster parents, and/or caretakers. If the natural father has not taken any action to establish paternity, then the father married to the mother is still the presumed father. However, actions to establish paternity may also be brought by the director of social services if and only if the child is likely to become a public charge. Even if paternity rules out the presumed father, it still does not warrant removal from the case, as the presumed father can still be another class of party allowed under the Juvenile Code, such as a caretaker.

To say the least, this area of law is very nuanced, and speaking to an experienced family law specialist is a priority in these cases.

[1] In re Legitimation of Locklear, 314 N.C. 412, 419, 334 S.E.2d 46, 51 (1985) (“minor child was ‘born out of wedlock,’ although his mother was married to another man, not his natural father”); Smith v. Bumgarner, 115 N.C. App. 149, 151, 443 S.E.2d 744, 745 (1994) (citing Locklear and 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)) (“[a] child born to a married woman but begotten by one other than her husband is a child ‘born out of wedlock’ ”); Wright (G.S. 49-14 is applicable to all children born out of wedlock).