Understanding the Problem
In North Carolina family law, the practical question is whether a parent or alleged father can still ask for genetic testing when paperwork has already been signed and a father’s name appears on the birth certificate. The answer usually turns on whether paternity is only being questioned informally or has already been addressed through a signed parentage affidavit or court order.
Apply the Law
North Carolina treats genetic testing as a court-driven process in paternity-related civil cases. A name on a birth certificate does not always end the inquiry. If parentage is at issue in a civil action, the court must order the mother, child, and alleged father to undergo testing when a party properly requests it. If an affidavit or prior paternity order already exists, testing may still be available, but additional filing and proof requirements may apply.
Key Requirements
- Identify how paternity was established: Determine whether the father was listed because the parties signed an affidavit of parentage or because a court previously entered a paternity order.
- Use the proper court filing: Genetic testing generally requires a motion in an existing civil case, a paternity complaint, or a motion to rescind or set aside an existing determination.
- Check eligibility and deadlines: A civil action under § 49-14 concerns the paternity of a child born out of wedlock and generally must be brought before the child turns 18. An affidavit challenge may be subject to a much shorter rescission period.
- State the required grounds when necessary: A motion under the set-aside provisions for an affidavit or paternity order must allege fraud, duress, mutual mistake, or excusable neglect before the court is required to order testing under those provisions.
What the Statutes Say
- N.C. Gen. Stat. § 8-50.1 (Genetic testing in civil parentage cases) – When parentage arises in a civil action, the court must order testing upon a party’s motion. The requesting person initially pays the testing costs, although the court may later tax those expenses as costs.
- N.C. Gen. Stat. § 110-132 (Affidavit of parentage; rescission and set-aside) – An affidavit signed by the mother and putative father has the same legal effect as a paternity judgment for establishing child support. Either signatory may seek rescission before the earlier of 60 days after execution or entry of a paternity or child support order. The statute also provides procedures for later challenges.
- N.C. Gen. Stat. § 49-14 (Civil paternity action; setting aside paternity orders) – This statute permits a civil action to establish the paternity of a child born out of wedlock before the child turns 18. It also permits a trial court to set aside a paternity order when the required grounds and genetic results are established.
Analysis
When the only known fact is that the other parent “signed the birth certificate,” the next question is what was actually signed. It may have been a voluntary affidavit of parentage used to place a father’s name on the birth certificate. If no binding determination exists, a party may be able to file a paternity action and request testing. If an affidavit or court order already exists, the request must follow the procedure for rescinding or setting aside that determination.
Process & Timing
- Determine what document exists: Obtain the affidavit, paternity order, child support order, or other paperwork that caused the father’s name to appear on the birth certificate.
- File in District Court: Depending on the circumstances, a parent or alleged father may file a paternity complaint, a motion requesting genetic testing, or a motion to rescind or set aside an existing determination.
- Meet the affidavit deadline: The right to rescind an affidavit lasts until the earlier of 60 days after execution or entry of an order establishing paternity or requiring child support. The request must be filed with the clerk, and all required parties must be properly served.
- Complete court-ordered testing: In a civil action governed by § 8-50.1(b1), the person requesting testing initially pays its cost. The court may later include the expense in taxable costs.
- Obtain the resulting order: The court may enter an order establishing paternity or, when the statutory requirements are met, rescinding or setting aside an existing determination. The order can then be reported to state vital-records officials as required.
Exceptions & Pitfalls
- An affidavit is more than “just a birth certificate”: An affidavit signed by both parents can have the same legal effect as a paternity judgment for establishing a child support obligation.
- Testing alone may not undo an existing determination: Under the set-aside provisions of §§ 110-132 and 49-14, the moving party must establish both nonpaternity through genetic testing and a qualifying ground such as fraud, duress, mutual mistake, or excusable neglect.
- The moving party bears the burden: The person asking to set aside an affidavit or paternity order must prove the statutory requirements.
- Service errors can delay the case: A rescission request requires proper service on all parties, including the child support enforcement agency when appropriate.
- Marriage may change the analysis: The statutory set-aside provisions do not eliminate the presumption of legitimacy when a child is born during the marriage of the mother and putative father.
Conclusion
North Carolina law permits a party to request genetic testing even when a father is already named on the birth certificate. The controlling question is whether paternity was established through an affidavit, a court order, or not at all. For an affidavit, the ordinary rescission threshold is the earlier of 60 days after signing or entry of a paternity or support order. The next step is to identify the existing document and file the appropriate paternity, rescission, or set-aside request in District Court.
Talk to a Family Law Attorney
If a paternity question has arisen after birth-certificate paperwork was signed, contact our family law attorneys for a free case evaluation about the proper filing, available grounds, and applicable deadlines. Call (919) 341-7055 today.
