North Carolina Family Law Statutes
Support of Illegitimate Children.
§ 49-1. Title.
This Article shall be referred to as "An act concerning
the support of children of parents not married to each
other." (1933, c. 228, s. 11.)
§ 49-2. Nonsupport of illegitimate child by parents made
Any parent who willfully neglects or who refuses to provide
adequate support and maintain his or her illegitimate child shall
be guilty of a Class 2 misdemeanor. A child within the meaning of
this Article shall be any person less than 18 years of age and any
person whom either parent might be required under the laws of
North Carolina to support and maintain if such child were the
legitimate child of such parent. (1933, c. 228, s. 1; 1937, c.
432, s. 1; 1939, c. 217, ss. 1, 2; 1951, c. 154, s. 1; 1977, c. 3,
s. 1; 1993, c. 539, s. 414; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 49-3. Place of birth of child no consideration.
The provisions of this Article shall apply whether such child
shall have been begotten or shall have been born within or without
the State of North Carolina: Provided, that the child to be
supported is a bona fide resident of this State at the time of the
institution of any proceedings under this Article. (1933, c. 228,
§ 49-4. When prosecution may be commenced.
The prosecution of the reputed father of an illegitimate child may
be instituted under this Chapter within any of the following
periods, and not thereafter:
(1) Three years next after the birth of
the child; or
(2) Where the paternity of the child has been judicially
determined within three years next after its birth, at any time
before the child attains the age of 18 years; or
(3) Where the reputed father has acknowledged paternity of the
child by payments for the support thereof within three years next
after the birth of such child, three years from the date of the
last payment whether such last payment was made within three years
of the birth of such child or thereafter: Provided, the action is
instituted before the child attains the age of 18 years.
The prosecution of the mother of an illegitimate child may be
instituted under this Chapter at any time before the child attains
the age of 18 years. (1933, c. 228, s. 3; 1939, c. 217, s. 3;
1945, c. 1053; 1951, c. 154, s. 2.)
§ 49-5. Prosecution; death of mother no bar; determination
Proceedings under this Article may be brought by the mother or her
personal representative or, if the child is likely to become a
public charge, the director of social services or such person as
by law performs the duties of such official in said county where
the mother resides or the child is found. Proceedings under this
Article may be brought in the county where the mother resides or
is found, or in the county where the putative father resides or is
found, or in the county where the child is found. The fact that
the child was born outside of the State of North Carolina shall
not be a bar to proceedings against the putative father in any
county where he resides or is found, or in the county where the
mother resides or the child is found. The death of the mother
shall in no wise affect any proceedings under this Article.
Preliminary proceedings under this Article to determine the
paternity of the child may be instituted prior to the birth of the
child but when the judge or court trying the issue of paternity
deems it proper, he may continue the case until the woman is
delivered of the child. When a continuance is granted, the courts
shall recognize the person accused of being the father of the
child with surety for his appearance, either at the next session
of the court or at a time to be fixed by the judge or court
granting a continuance, which shall be after the delivery of the
child. (1933, c. 228, s. 4; 1961, c. 186; 1969, c. 982; 1971, c.
1185, s. 18; 1981, c. 599, s. 13.)
§ 49-6. Mother not excused on ground of self-incrimination;
not subject to penalty.
No mother of an illegitimate child shall be excused, on the
ground that it may tend to incriminate her or subject her to a
penalty or a forfeiture, from attending and testifying, in
obedience to a subpoena of any court, in any suit or proceeding
based upon or growing out of the provisions of this Article, but
no such mother shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing
as to which, in obedience to a subpoena and under oath, she may so
testify. (1933, c. 228, s. 5; 1939, c. 217, s. 5.)
§ 49-7. Issues and orders.
The court before which the matter may be brought shall
determine whether or not the defendant is a parent of the child on
whose behalf the proceeding is instituted. After this matter has
been determined in the affirmative, the court shall proceed to
determine the issue as to whether or not the defendant has
neglected or refused to provide adequate support and maintain the
child who is the subject of the proceeding. After this matter
shall have been determined in the affirmative, the court shall fix
by order, subject to modification or increase from time to time, a
specific sum of money necessary for the support and maintenance of
the child, subject to the limitations of G.S. 50-13.10. The amount
of child support shall be determined as provided in G.S.
50-13.4(c). The order fixing the sum shall require the defendant
to pay it either as a lump sum or in periodic payments as the
circumstances of the case may appear to the court. The social
security number, if known, of the minor child's parents shall be
placed in the record of the proceeding. Compliance by the
defendant with any or all of the further provisions of this
Article or the order or orders of the court requiring additional
acts to be performed by the defendant shall not be construed to
relieve the defendant of his or her responsibility to pay the sum
fixed or any modification or increase thereof.
The court before whom the matter may be brought, on motion of the
State or the defendant, shall order that the alleged-parent
defendant, the known natural parent, and the child submit to any
blood tests and comparisons which have been developed and adapted
for purposes of establishing or disproving parentage and which are
reasonably accessible to the alleged-parent defendant, the known
natural parent, and the child. The results of those blood tests
and comparisons, including the statistical likelihood of the
alleged parent's parentage, if available, shall be admitted in
evidence when offered by a duly qualified, licensed practicing
physician, duly qualified immunologist, duly qualified geneticist
or other duly qualified person. The evidentiary effect of those
blood tests and comparisons and the manner in which the expenses
therefor are to be taxed as costs shall be as prescribed in G.S.
8-50.1. In addition, if a jury tries the issue of parentage, they
shall be instructed as set out in G.S. 8-50.1. From a finding on
the issue of parentage against the alleged-parent defendant, the
alleged-parent defendant has the same right of appeal as though he
or she had been found guilty of the crime of willful failure to
support an illegitimate child. (1933, c. 228, s. 6; 1937, c. 432,
s. 2; 1939, c. 217, ss. 1, 4; 1944, c. 40; 1947, c. 1014; 1971, c.
1185, s. 19; 1975, c. 449, s. 3; 1977, c. 3, s. 2; 1979, c. 576,
s. 2; 1987, c. 739, s. 1; 1989, c. 529, s. 6; 1997-433, s. 4.1;
1998-17, s. 1.)
§ 49-8. Power of court to modify orders, suspend sentence,
Upon the determination of the issues set out in G.S. 49-7 and
for the purpose of enforcing the payment of the sum fixed, the
court is hereby given discretion, having regard for the
circumstances of the case and the financial ability and earning
capacity of the defendant and his or her willingness to cooperate,
to make an order or orders upon the defendant and to modify such
order or orders from time to time as the circumstances of the case
may in the judgment of the court require subject to the
limitations of G.S. 50-13.10. The order or orders made in this
regard may include any or all of the following alternatives:
(1) Repealed By Session Laws 1994,
Extra Session, c. 14, s. 35.
(2) Suspend sentence and continue the case from term to term;
(3) Release the defendant from custody on probation conditioned
upon the defendant's compliance with the terms of the probation
and the payment of the sum fixed for the support and maintenance
of the child;
(4) Order the defendant to pay to the mother of the said child the
necessary expenses of birth of the child and suitable medical
attention for her;
(5) Require the defendant to sign a recognizance with good and
sufficient security, for compliance with any order which the court
may make in proceedings under this Article. (1933, c. 228, s. 7;
1939, c. 217, s. 6; 1987, c. 739, s. 2; 1994, Ex. Sess., c. 14, s.
§ 49-9. Bond for future appearance of defendant.
At the preliminary hearing of any case arising under this Article
it shall be the duty of the court, if it finds reasonable cause
for holding the accused for a further hearing, to require a bond
in the sum of not less than one hundred dollars ($100.00),
conditioned upon the reappearance of the accused at the further
hearing under this Article. This bond and all other bonds provided
for in this Article shall be justified before, and approved by,
the court or the clerk thereof. (1933, c. 228, s. 8.)
Legitimation of Illegitimate Children.
§ 49-10. Legitimation.
The putative father of any child born out of wedlock, whether such
father resides in North Carolina or not, may apply by a verified
written petition, filed in a special proceeding in the superior
court of the county in which the putative father resides or in the
superior court of the county in which the child resides, praying
that such child be declared legitimate. The mother, if living, and
the child shall be necessary parties to the proceeding, and the
full names of the father, mother and the child shall be set out in
the petition. A certified copy of a certificate of birth of the
child shall be attached to the petition. If it appears to the
court that the petitioner is the father of the child, the court
may thereupon declare and pronounce the child legitimated; and the
full names of the father, mother and the child shall be set out in
the court order decreeing legitimation of the child. The clerk of
the court shall record the order in the record of orders and
decrees and it shall be cross- indexed under the name of the
father as plaintiff or petitioner on the plaintiff's side of the
cross-index, and under the name of the mother, and the child as
defendants or respondents on the defendants' side of the
cross-index. (Code, s. 39; Rev., s. 263; C.S., s. 277; 1947, c.
663, s. 1; 1971, c. 154; 1977, c. 83, s. 1.)
§ 49-11. Effects of legitimation.
The effect of legitimation under G.S. 49-10 shall be to impose
upon the father and mother all of the lawful parental privileges
and rights, as well as all of the obligations which parents owe to
their lawful issue, and to the same extent as if said child had
been born in wedlock, and to entitle such child by succession,
inheritance or distribution, to take real and personal property
by, through, and from his or her father and mother as if such
child had been born in lawful wedlock. In case of death and
intestacy, the real and personal estate of such child shall
descend and be distributed according to the Intestate Succession
Act as if he had been born in lawful wedlock. (Code, s. 40; Rev.,
s. 264; C.S., s. 278; 1955, c. 540, s. 2; 1959, c. 879, s. 10;
1963, c. 1131.)
§ 49-12. Legitimation by subsequent marriage.
When the mother of any child born out of wedlock and the reputed
father of such child shall intermarry or shall have intermarried
at any time after the birth of such child, the child shall, in all
respects after such intermarriage be deemed and held to be
legitimate and the child shall be entitled, by succession,
inheritance or distribution, to real and personal property by,
through, and from his father and mother as if such child had been
born in lawful wedlock. In case of death and intestacy, the real
and personal estate of such child shall descend and be distributed
according to the Intestate Succession Act as if he had been born
in lawful wedlock. (1917, c. 219, s. 1; C.S., s. 279; 1947, c.
663, s. 2; 1955, c. 540, s. 3; 1959, c. 879, s. 11.)
§ 49-12.1. Legitimation when mother married.
(a) The putative father of a child born to a mother who is
married to another man may file a special proceeding to legitimate
the child. The procedures shall be the same as those specified by
G.S. 49-10, except that the spouse of the mother of the child
shall be a necessary party to the proceeding and shall be properly
served. A guardian ad litem shall be appointed to represent the
child if the child is a minor.
(b) The presumption of legitimacy can be overcome by clear and
(c) The parties may enter a consent order with the approval of the
clerk of superior court. The order entered by the clerk shall find
the facts and declare the proper person the father of the child
and may change the surname of the child.
(d) The effect of legitimation under this section shall be the
same as provided by G.S. 49-11.
(e) A certified copy of the order of legitimation under this
section shall be sent by the clerk of superior court under his
official seal to the State Registrar of Vital Statistics who shall
make a new birth certificate bearing the full name of the father
of the child and, if ordered by the clerk, changing the surname of
the child. (1991, c. 667, s. 2; 1991 (Reg. Sess., 1992), c. 1030,
s. 15; 1997-433, s. 4.9; 1998-17, s. 1.)
§ 49-13. New birth certificate on legitimation.
A certified copy of the order of legitimation when issued under
the provisions of G.S. 49-10 shall be sent by the clerk of the
superior court under his official seal to the State Registrar of
Vital Statistics who shall then make the new birth certificate
bearing the full name of the father, and change the surname of the
child so that it will be the same as the surname of the father.
When a child is legitimated under the provisions of G.S. 49-12,
the State Registrar of Vital Statistics shall make a new birth
certificate bearing the full name of the father upon presentation
of a certified copy of the certificate of marriage of the father
and mother and change the surname of the child so that it will be
the same as the surname of the father. (1947, c. 663, s. 3; 1955,
c. 951, s. 2.)
§ 49-13.1: Repealed by Session Laws 2004-203, s. 3,
effective August 17, 2004.
Civil Actions Regarding Illegitimate Children.
§ 49-14. Civil action to establish paternity.
(a) The paternity of a child born out of wedlock may be
established by civil action at any time prior to such child's
eighteenth birthday. A copy of a certificate of birth of the child
shall be attached to the complaint. The establishment of paternity
shall not have the effect of legitimation. The social security
numbers, if known, of the minor child's parents shall be placed in
the record of the proceeding.
(b) Proof of paternity pursuant to this section shall be by clear,
cogent, and convincing evidence.
(c) No such action shall be commenced nor judgment entered after
the death of the putative father, unless the action is commenced
(1) Prior to the death of the putative
(2) Within one year after the date of death of the putative
father, if a proceeding for administration of the estate of the
putative father has not been commenced within one year of his
(3) Within the period specified in G.S. 28A-19-3(a) for
presentation of claims against an estate, if a proceeding for
administration of the estate of the putative father has been
commenced within one year of his death.
Any judgment under this subsection establishing a decedent to
be the father of a child shall be entered nunc pro tunc to the day
preceding the date of death of the father.
(d) If the action to establish paternity is brought more than
three years after birth of a child or is brought after the death
of the putative father, paternity shall not be established in a
contested case without evidence from a blood or genetic marker
(e) Either party to an action to establish paternity may request
that the case be tried at the first session of the court after the
case is docketed, but the presiding judge, in his discretion, may
first try any pending case in which the rights of the parties or
the public demand it.
(f) When a determination of paternity is pending in a IV-D case,
the court shall enter a temporary order for child support upon
motion and showing of clear, cogent, and convincing evidence of
paternity. For purposes of this subsection, the results of blood
or genetic tests shall constitute clear, cogent, and convincing
evidence of paternity if the tests show that the probability of
the alleged parent's parentage is ninety-seven percent (97%) or
higher. If paternity is not thereafter established, then the
putative father shall be reimbursed the full amount of temporary
support paid under the order.
(g) Invoices for services rendered for pregnancy, childbirth, and
blood or genetic testing are admissible as evidence without
requiring third party foundation testimony and shall constitute
prima facie evidence of the amounts incurred for the services or
for testing on behalf of the child. (1967, c. 993, s. 1; 1973, c.
1062, s. 3; 1977, c. 83, s. 2; 1981, c. 599, s. 14; 1985, c. 208,
ss. 1, 2; 1993, c. 333, s. 3; 1995, c. 424, ss. 1, 2; 1997-154, s.
1; 1997-433, ss. 4.2, 4.10; 1998-17, s. 1; 2005-389, s. 3.)
§ 49-15. Custody and support of illegitimate children when
Upon and after the establishment of paternity of an
illegitimate child pursuant to G.S. 49-14, the rights, duties, and
obligations of the mother and the father so established, with
regard to support and custody of the child, shall be the same, and
may be determined and enforced in the same manner, as if the child
were the legitimate child of such father and mother. When
paternity has been established, the father becomes responsible for
medical expenses incident to the pregnancy and the birth of the
child. (1967, c. 993, s. 1.)
§ 49-16. Parties to proceeding.
Proceedings under this Article may be brought by:
(1) The mother, the father, the child, or the personal
representative of the mother or the child.
(2) When the child, or the mother in case of medical expenses, is
likely to become a public charge, the director of social services
or such person as by law performs the duties of such official,
a. In the county where the mother
resides or is found,
b. In the county where the putative father resides or is found, or
c. In the county where the child resides or is found. (1967, c.
993, s. 1; 1969, c. 982; 1975, c. 54, s. 2.)
§ 49-17. Jurisdiction over nonresident or nonpresent
(a) The act of sexual intercourse within this State
constitutes sufficient minimum contact with this forum for
purposes of subjecting the person or persons participating therein
to the jurisdiction of the courts of this State for actions
brought under this Article for paternity and support of any child
who may have been conceived as a result of such act.
(b) The jurisdictional basis in subsection (a) of this section
shall be construed in addition to, and not in lieu of, any basis
or bases for jurisdiction within G.S. 1-75.4. (1979, c. 542.)
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