North Carolina Divorce Lawyers Blog
Published on:

Paternity and Custody

By

Dear Carolyn,

I believe I am the Father of a son, but the Mother is married to someone else.  I dated Mother while she and her husband were separated, but now they are back together.   We had sex during the time we were dating and the child was born 9 months later—perfect timing for the child to be mine. Mother and Mother’s husband will not let me see the child, and quite frankly, hide him from me.  I want to see my son.  What can I do?  I do not have any other children.

~ Bewildered Father

 

Dear Bewildered,

You have a chance for visitation, and here’s what you will need to do.  North Carolina has a very strong presumption that a child born of and during a marriage is the child of the Husband to the marriage.   You will have to file a lawsuit asking for visitation and asking that the presumption be overcome.

There is a case from the North Carolina Court of Appeals that is very close to yours in many ways—Jefferies v. Moore.  In Jefferies, the putative father (supposed or assumed father) asked for custody rights and won because he rebutted the strong presumption that a child born during a marriage is the child of the Husband.  How did he do it?  Jefferies showed the court that he had had numerous acts of unprotected sex with the Mother during the time the conception happened.  In Jefferies, Husband and Wife were Caucasian, but the child in question appeared to have a mixed race ancestry, which also helped rebut the presumption.  The Father was of a different race.

So in your lawsuit, you are going to need to discuss the unprotected sex that you and the Mother had, along with the timing issue.  Proof of the separation of Husband and Wife may also help your case.  You do not say if there are other characteristics of the child that are unique to you and this particular Mother, but if you have those facts, please use them as well.

Be patient with your case, as it is likely going to take some time.  You may have to fight about something called “standing” because of the presumption that Husband is the Father.  The Jefferies   case I mentioned should help you with this issue of “standing” (the right to contest the issue). Perhaps you have some letter or card from Mother acknowledging that you are the Father.  An email from Mother to you acknowledging you are the Father would be fabulous for your case!

Your child deserves to know a fine Father.  Fight for this right for your child!

 

Follow Ask Carolyn on Twitter and Facebook!

 

This blog is revised from a previous Ask Carolyn in The Rhino Times.