September 2, 1980
Subject:
Social Services; Establishing Paternity for AFDC Purposes; N.C.G.S. 130-50(f).
Requested By:
Dr. Sarah T. Morrow, Secretary
N.C. Department of Human Resources
Question:
Is compliance with the provisions of N.C.G.S. 130-50(f) sufficient, standing alone, to establish paternity of an illegitimate child for the purpose of qualifying for Aid to Families with Dependent Children?
Conclusion:
No.
Under federal and State regulations and procedures, it may be necessary to legally establish the paternity of an illegitimate child in order to determine whether the persons with whom the child resides qualify for Aid to Families with Dependent Children (AFDC) pursuant to Parts 2 and 3 of Article 2, Chapter 108 of the North Carolina General Statutes.
Inquiry has been made whether compliance with N.C.G.S. 130-50(f) alone will legally establish paternity for AFDC purposes. These purposes require that the putative father be legally obligated to provide support for the illegitimate child. 45 C.F.R. § 233.90(a).
N.C.G.S. 130-50(f) provides:
"(f) If the mother was unmarried at all times from date of conception through date of birth, the name of the father shall not be entered on the certificate without the written consent, under oath, of both the father and the mother, in which case, upon written request of both parents, the surname of the child shall be entered on the certificate as that of the father. In all other cases a child born out of wedlock shall take the same surname of that of the mother."
We conclude that a certification filed pursuant to N.C.G.S. 130-50(f) would be evidence of paternity but, without more, would not establish the fact of paternity, other than for the very limited purposes of N.C.G.S. 130-50(f).
The principal methods of establishing paternity appear in Chapter 49. Each of them requires entry of a court order. For purposes of intestate succession under G.S. 29-19, paternity can be established by written certification of the putative father, filed during the lifetime of the father in the office of the clerk of superior court of the county in which the father or the child resides.
Under G.S. 110-132(a), a written acknowledgement of paternity by the father, accompanied by a written, executed and sworn affirmation of paternity by the mother, may be filed with a district court judge; and if approved by him, it shall have the same force and effect as a judgment of the court and may be in lieu or conclusion of any legal proceeding to establish paternity.
Under the consent judgment, dated May 22, 1975, entered in Glenn v. Flaherty, No. C-75-81-WS, United States District Court for the Middle District of North Carolina, a birth certificate issued pursuant to G.S. 130-50(f) would apparently serve to establish paternal relationships for purposes of the judgment only if the child had not been legitimated or no court order establishing paternity had been entered and if the natural father and mother were both deceased or the natural mother, if living, could not be contacted and the statute of limitations for bringing a paternity action had run.
In every statute reviewed, with the exception of those relating, respectively, to intestate succession and birth certificates, the determination of paternity required court action. Nothing has been found that indicates a legislative purpose that an affidavit acknowledging paternity, by itself, will make the putative father liable for support. The judgment in Glenn appears to contemplate that a court determination of paternity will be obtained whenever possible.
The nature of the acknowledgment and certification to be filed under G.S. 150-30(f) would meet the requirements of G.S. 110-132(a); but under the latter statute, the acknowledgment and certification would have to be filed with and approved by the district court and presumably the approval would be in the form of a written order.
Thus, it is our conclusion that while the acknowledgment made by the putative father under G.S. 130-50(f) would certainly be strong evidence of paternity, it requires a court order to determine paternity for the purpose of requiring child support.
Rufus L. Edmisten Attorney General
Henry T. Rosser Assistant Attorney General