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.