Midtown Divorce and Family Law Blog

Wrong Father Named On Birth Certificate?

Under NC law, for every child born in this State a birth certificate must be filed.  Birth certificates are filed in the county where the child is born, and, among other things, list the names of the child’s parents.  If the mother is married at the time, it is required that her husband’s name be listed on the birth certificate as the father of the child.  However, if it is already known that a third person is the father then that person can be listed as the father of the child if the person has been determined in a court of law to be the father, or if the mother, her husband, and the third person all sign an affidavit acknowledging that the third person is the father.  If the mother of the child is not married no father shall be listed on the birth certificate unless both the mother and the father of the child sign an affidavit acknowledging paternity.

So, what happens if the wrong person is listed as the father of the child on the birth certificate?  There are many reasons this can happen, but those reasons are not the point of this article.  Our purpose here is to determine how to fix the problem once it has been discovered.

Where an affidavit of parentage is used, both the mother and the father have sixty (60) days to rescind the acknowledgment.  The party requesting the rescission must apply to the court to order the rescission.  If the court does in fact order the rescission the State Registrar will remove the father’s name from the birth certificate.

If sixty days have passed, there are only two methods for amending the birth certificate where the father was entered based on an affidavit of paternity.  First, a party may prove that the affidavit was entered as a result of fraud, duress, mutual mistake, or excusable neglect.  However, this scenario is rare.  Second, and much more common, is where a DNA test proves the listed father is not the actual biological father of the child, or a DNA test proves that another man is the actual biological father.  This could occur, for example, where a child support action has been filed against the named father, and the named father claims that he is not the actual father of the child.  The court can order a DNA test.  If the test proves the named father is not the actual father, the court will enter an order adjudicating that the named father is not the actual father.  Then he can submit the order to the Registrar in order to have his name removed from the birth certificate.  Likewise, the court could enter an order adjudicating that another man is the biological father of the child, and that order can be submitted to the Registrar to have the birth certificate amended to state the correct father’s name.

The amendment of a birth certificate is controlled by statute, but there are conflicts within the statutes that can complicate matters.  If you need help having a birth certificate amended for any reason, call Amos & Amos, Attorneys at Law, PA at 919-900-7747.  We are here to help.

LAWYER’S PLEDGE OF PROFESSIONALISM

This is our pledge to you, our clients and potential clients:

  1.  We will remember that the practice of law is first and foremost a profession, and I will subordinate business concerns to professionalism concerns.

  2.  We will encourage respect for the law and our legal system through my words and actions.

  3.  We will remember my responsibilities to serve as an officer of the court and protector of individual rights.

  4.  We will contribute time and resources to public service, public education, charitable, and pro bono activities in my community.

  5.  We will work with the other participants in the legal system, including judges, opposing counsel and those whose practices are different from mine, to make our legal system more accessible and responsive.

  6.  We will resolve matters expeditiously and without unnecessary expense.

  7.  We will resolve disputes through negotiation whenever possible.

  8.  We will keep my clients well-informed and involved in making the decisions that affect them.

  9.  We will continue to expand my knowledge of the law.

  10.  We will achieve and maintain proficiency in my practice.

  11.  We will be courteous to those with whom I come into contact during the course of my work.

  12.  We will honor the spirit and intent, as well as the requirements, of the applicable rules or code of professional conduct for my jurisdiction, and I will encourage others to do the same.

At Midtown Divorce & Family Law we handle all manner of divorce and family law related claims, including divorce, separation agreements, equitable distribution or property division, alimony and spousal support, child custody and child support.  If you are someone you know needs assistance with a separation or divorce matter, please give us a call at 919-803-7208.

HOW TO GET DIVORCED IN NORTH CAROLINA

DISCLAIMER:  This guide has been prepared for general information purposes and is not legal advice.  Legal advice is dependent on the specific facts and circumstances of each situation.  The information in this guide cannot take the place of competent legal counsel tailored to your specific situation.

This guide will walk you through the technicalities of how to get divorced in North Carolina.    You may have additional issues that need to be addressed prior to filing divorce.  Questions that need to be answered:  1) Do you have minor children?  2) Is there marital property, such as real estate, retirement accounts, personal property or other assets, to divide?  3)  Is one spouse in need of financial support from the other spouse?  If you answered yes to any of these questions, you should not get divorced until you have consulted with a qualified family law attorney as many rights, if not preserved, are waived upon entry of the absolute divorce judgment.

Continue reading “HOW TO GET DIVORCED IN NORTH CAROLINA”

PREPARING FOR DIVORCE – PART I

50% Chance of Snow – What do winter weather and divorce have in common?

The weatherman was calling for snow or ice. He wasn’t sure exactly what we were going to get, but he said he was fairly sure we were going to get something. He signed off the forecast with the recommendation to be prepared.

Continue reading “PREPARING FOR DIVORCE – PART I”

TERMINATION OF PARENTAL RIGHTS

The termination of parental rights statutes provide for a two-stage termination proceeding: an adjudication stage and a disposition stage. In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a). The statute sets forth eleven possible grounds for termination of parental rights. Those grounds are as follows: Continue reading “TERMINATION OF PARENTAL RIGHTS”

How Does Divorce Affect Social Security Benefits?

If you are divorced, but your marriage lasted 10 years or longer, you can receive benefits on your ex-spouse’s record (even if he or she has remarried) if:

• You are unmarried;
• You are age 62 or older;
• Your ex-spouse is entitled to Social Security retirement or disability benefits and
• The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work. Continue reading “How Does Divorce Affect Social Security Benefits?”

How To Change Your Name After Divorce

N.C.G.S. Sec. 50-12 provides that anyone whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which they reside or where the divorce was granted setting forth their intention to do so, change their name.

A woman has the choice of reverting to her maiden name, the surname of a prior deceased husband, or the surname of a prior living husband if she has children who have that husband’s surname.  If a man changed his surname upon marriage, he may revert to his pre-marriage surname. Continue reading “How To Change Your Name After Divorce”

I NEED EMERGENCY CHILD CUSTODY!

Do You Want To File For Emergency Child Custody?

Requirements:

The child or children is at SUBSTANTIAL risk that:

1.  The child or children will suffer bodily injury or sexual abuse, or

2.  The child or children will be removed from the State of North Carolina FOR THE PURPOSE of EVADING THE JURISDICTION of the North Carolina courts. Continue reading “I NEED EMERGENCY CHILD CUSTODY!”

The 7 Biggest Money Mistakes That Divorcing Women Make

The 7 Biggest Money Mistakes That Divorcing Women Make
Lili A. Vasileff  July 9, 2014
Divorcing couple arguing
Hybrid Images—Getty Images/Cultura RF
A financial planner flags the costly errors women commonly make when a marriage breaks up.

Divorce, in my experience, is about two things: children and money. Continue reading “The 7 Biggest Money Mistakes That Divorcing Women Make”

How To Tell Your Spouse That You Want A Divorce

You’ve been thinking about it for a long time. Maybe you have spoken to your therapist or clergy person, trusted friend or family member. You’ve most likely spoken to an attorney to educate yourself about what’s ahead, financially at least. Your marriage, despite all the hard work you did together or separately, is over.

Now what? Continue reading “How To Tell Your Spouse That You Want A Divorce”