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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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I currently live in North Carolina. My girlfriend and I have

Customer Question

I currently live in North Carolina. My girlfriend and I have seperated, we have a child that is 2 years old. My name is XXXXX XXXXX the birth certificate. I was allowed visitation up to about a month ago. Now she won't respond to emails, telephone calles or text messages. What can I do to get visitation rights of my daughter?
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

Did you sign an acknowledgment of paternity when your child was born?

Thanks
Customer: replied 1 year ago.


no, I have no idea what acknowledgement of paternity is.

Customer: replied 1 year ago.


No

Customer: replied 1 year ago.


no, she was still legally married at the time

Expert:  xavierjd replied 1 year ago.
Hi Charles,

I want to look up a few things for you. I will be back with an answer asap.

Thanks for your patience.
Expert:  xavierjd replied 1 year ago.
Hi Charles,

I am so sorry that you find yourself in this horrible situation. Unfortunately, under North Carolina law, you MAY not even legally be the father.

A married man is always presumed to be the father of his wife’s children. At almost any time, a mother can accuse a man of fathering her child and potentially sue for child support. The law does require “clear, cogent, and convincing evidence” to establish paternity, which is generally done through a blood or genetic marker test. So, if she was still married when the child was conceived and/or born, her husband is presumed to be the father.

Specifically, North Carolina Statute 130A-101 in applicable part states:

(e) If the mother was married at the time of either conception or birth, or between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, except as provided in this subsection. The surname of the child shall be the same as that of the husband, except that upon agreement of the husband and mother, or upon agreement of the mother and father if paternity has been otherwise determined, any surname may be chosen. The name of the putative father shall be entered on the certificate as the father of the child if one of the following conditions exists:

(1) Paternity has been otherwise determined by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered.

(2) The child's mother, mother's husband, and putative father complete an affidavit acknowledging paternity that contains all of the following:

a. A sworn statement by the mother consenting to the assertion of paternity by the putative father and declaring that the putative father is the child's natural father.

b. A sworn statement by the putative father declaring that he believes he is the natural father of the child.

c. A sworn statement by the mother's husband consenting to the assertion of paternity by the putative father.

d. Information explaining in plain language the effect of signing the affidavit, including a statement of parental rights and responsibilities and an acknowledgment of the receipt of this information.

e. The social security numbers of the putative father, mother, and mother's husband.

f. The results of a DNA test that has confirmed the paternity of the putative father.

(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 unless the child's mother and father complete an affidavit acknowledging paternity which contains the following:

(1) A sworn statement by the mother consenting to the assertion of paternity by the father and declaring that the father is the child's natural father and that the mother was unmarried at all times from the date of conception through the date of birth;

(2) A sworn statement by the father declaring that he believes he is the natural father of the child;

(3) Information explaining in plain language the effect of signing the affidavit, including a statement of parental rights and responsibilities and an acknowledgment of the receipt of this information; and

(4) The social security numbers of both parents.

The State Registrar, in consultation with the Child Support Enforcement Section of the Division of Social Services, shall develop and disseminate a form affidavit for use in compliance with this section, together with an information sheet that contains all the information required to be disclosed by subdivision (3) of this subsection.

Upon the execution of the affidavit, the declaring father shall be listed as the father on the birth certificate, subject to the declaring father's right to rescind under G.S. 110‑132. The executed affidavit shall be filed with the registrar along with the birth certificate. In the event paternity is properly placed at issue, a certified copy of the affidavit shall be admissible in any action to establish paternity. The surname of the child shall be determined by the mother, except if the father's name is XXXXX XXXXX the certificate, the mother and father shall agree upon the child's surname. If there is no agreement, the child's surname shall be the same as that of the mother.

The execution and filing of this affidavit with the registrar does not affect rights of inheritance unless the affidavit is also filed with the clerk of court in accordance with G.S. 29‑19(b)(2).

(g) Each parent shall provide his or her social security number to the person responsible for preparing and filing the certificate of birth.

Last modified: February 21, 2012

 

If you are not on the birth certificate or none of the above requirements of the statute above apply, you will need to bring an action in court to establish paternity. Once paternity is established, you will have to pay child support BUT you will be entitled to visitation with your daughter. Until you are established as the father, you have NO right to visitation.

 

It would be in your best interest to speak to an attorney in your area who specializes in family law. Sometimes, an initial consultation is free or at a minimal charge. You can discuss the specific facts of your case, evaluate your options and decide how to proceed.

 

Below is a link to the North Carolina Bar Association Attorney Referral Page:

 

http://www.ncbar.org/public-pro-bono/lawyer-referral-service/for-the-public

 

I hope that you find this information useful.

 

 

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

 

 

xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 10 other Family Law Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi Charles,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

Customer: replied 1 year ago.


how can I get a DNA test without an attorney?

Expert:  xavierjd replied 1 year ago.
Hi Charles,

Unless the mother agrees, you will not be able to obtain a paternity test without a court order. That is because a blood test will have to be given to you, the child and the mother.

That means that you will have to file a written Formal Complaint in the Family Court to establish paternity. Because the mother of the child was married within 10 month of the child being born, the husband is presumed to be the father of the child. However, this presumption can be overcome by DNA testing.

To file a Formal Complaint to Establish Paternity is much more complicated than you would think. You will need to obtain a copy of the birth certificate, sign a affidavit, and establish, in numbered paragraphs, why you believe that you are the father of the child. You must also provide the name and address of the child and mother, and date of birth of the child.

Actually, the North Carolina Department of Health and Human Services may be able to help you. Sometimes, they may even file the Formal Complaint on a parent's behalf.

Below is a link to the DHHS, Paternity page. Actually, you can read through each page by clicking "next" at the bottom of each page. The site has very valuable information and after reading it, you may wish to contact DHHS for assistance.

http://info.dhhs.state.nc.us/olm/manuals/dss/cse/man/CSEcI-01.htm

If the DHHS cannot help you, it would be in your best interest to speak to an attorney who specializes in family law. To go through this process on your own may be VERY difficult. All necessary documentation must be in place and served upon the mother. If there are any mis-steps, the Complaint may be dismissed.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

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