One in four parents living with a child in the United States today are unmarried.

Of these, 35% of all unmarried parents are living with a partner. In the event the relationship goes south, do unmarried fathers have rights to their child?

In North Carolina, parental rights and responsibilities do not automatically vest for unmarried fathers as they do for married parents. If parties are married at the time of the child's conception or birth, the husband is presumed to be the father of the child. Conception is presumed to have occurred ten lunar months, or 280 days, prior to the child’s birth. If a child is born out of wedlock, however, by default, the mother is granted sole legal and physical custody. A mother may threaten to leave the state, be unfit, prevent the father from visiting the child, or fail to seek guidance on major decisions impacting him/her. So, what is a father to do?

Establishing Paternity is the First Step

If you are an unmarried father seeking custodial rights, the first step is to establish paternity. Paternity can be established voluntarily, often at the hospital when the child is born, through an Affidavit of Parentage, or later through court-ordered genetic testing. 

Once paternity is established, the father may petition the court for custody or visitation, which can encompass decision-making authority. In North Carolina, custody decisions are based on the "best interests of the child" standard. For unwed fathers, courts typically consider:

• The father's relationship with the child
• His ability to co-parent effectively
• His ability to provide a stable environment, and
• His motivation in seeking custody.

Jurisdiction Issues in Custody Cases 

If the parties do not live in the same state at the time the child is born, there may be a jurisdictional issue. Custody cases must be filed in the child’s “home state,” which is the state where the child has lived for the six months before the case is filed.

In North Carolina, you may file a custody case in the county in which the child resides or is physically present or in a county where the parent resides.

Tips to Strengthen Your Custody Case in North Carolina

To bolster your custody case, do not delay in establishing paternity, either through an Affidavit of Paternity or a motion for paternity testing.

For a court to consider best interests, the court will assess whether your living arrangement is stable and suitable for a minor child. Be prepared to illustrate that you can tend to their physical and emotional needs.

Stay involved in the child's life, such as attending medical appointments, extracurricular events, birthday parties, and the like. Avoid negativity. Attempt respectful communication with the minor child's mother.

Remember that acts of domestic violence are relevant to custodial disputes when courts make findings as to the best interests of a child. Keep records of your efforts to be involved and engaged with the minor child.

FAQ in North Carolina Custody Cases 

Can I file for custody even if the mother and I were never in a relationship?

Yes. Your relationship with the mother is not a determining factor. 

Do courts favor mothers over fathers in custodial disputes?

No. The tender years presumption has been abolished in North Carolina. G.S. § 50-13.2(a) states that between the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. 

What is the difference between establishing paternity and legitimizing a child?

North Carolina law specifically states, “the establishment of paternity shall not have the effect of legitimation.” G.S. 49-14. If a child is legitimized, he or she is entitled to inherit from his or her mother and father intestate. It also imposes upon the father and mother all the parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue.

A child born out of wedlock may be legitimated if his or her mother and “reputed father” marry one another at any time after the child is born. G.S. 49-12. No court action is required. The child will be recognized as the legitimate child of his or her parents who married after the child’s birth. Otherwise, a child must be legitimized through a special proceeding. In contrast, paternity establishes the duty of support and of custodial rights of a minor child. 

Once paternity is established, will a father be responsible for child support?

Yes, both the father and mother shall be primarily liable for the support of a minor child. If you are uncertain that you may be the biological father of a child, seek a paternity test before signing an Affidavit of Paternity. 

Conclusion

Navigating custody issues as an unmarried parent can be complex and emotionally challenging, but you don't have to do it alone.