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How Are Child Custody Laws Different for Unmarried Parents?

More than 40% of North Carolina children are born to an unmarried parent. Unfortunately, if unmarried parents decide to part ways, custody can get complicated quickly. Child custody in NC for unmarried parents often begins with establishing paternity in order to establish parental rights.

Keep reading to learn how child custody laws are different for unmarried parents and how you can help ensure success in a potential legal battle.

What Are Parental Rights (and Who Has Them)?

A child and her mother embracing

As a biological parent in North Carolina, you have a legal right to be involved in your child’s life. This includes seeing them regularly (physical custody) and influencing important decisions on their behalf (legal custody).

North Carolina law recognizes the mother as a parent as soon as a child is born. If she had a husband at the time of either conception or birth, the law will also presume that he is the father unless it’s established otherwise.

But if the mother was unmarried throughout the pregnancy and birth, the parents (or in more contentious cases, the child’s biological father) will need to take extra steps for the biological father to be legally recognized. Physical custody or visitation might be more difficult until you establish paternity, and until then, the father does not have custody rights.

Once paternity is established, the custody rights of married and unmarried parents are the same.

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How Can Unmarried Parents Establish Paternity?

Showing paternity is easiest when both parents agree that the father is biologically related to the child with an affidavit of parentage. When the child is born, both parents sign the document in front of a notary to make the paternity official, establishing paternal rights and allowing the father’s name on the child’s birth certificate.

If an unmarried parent is not on record as biological relation, a judge will try to establish parentage, which will involve the father being asked to submit to a DNA test.

The North Carolina court divides the possible genetic percentages as follows:

  • Below 85%: The state generally sees this as evidence that the presumed father isn’t related to the child. While you can present other proof to argue this finding, this low percentage puts the father at an immediate disadvantage.
  • Between 85% and 97%: This range is slightly more concrete and will lead the judge to consider these results alongside other evidence before making a decision.
  • 97% or higher: North Carolina courts will take this as convincing evidence of parentage, and it would take substantial contradictory evidence to prove otherwise.

With parental rights established, North Carolina custody laws will determine the physical custody arrangements.

RELATED: 7 Mistakes That Can Hurt Your Child Custody Case

What Happens After Paternity Is Established?

A child and her father embracing

Once you’ve established paternity, both parents have equal parental rights to the child. The law does not favor one parent over the other. Custody laws for unmarried parents or married parents are exactly the same.

According to North Carolina custody laws, the courts can assign two types of child custody:

  • Legal: Whoever has legal custody over the children will make their major life decisions. This can include where they go to school, which doctor(s) they visit, and other major decisions. Sharing legal custody means that both parents will be involved in these important decisions.
  • Physical: The children will live with the parent who has primary physical custody. Sole custody means they will stay with one parent the majority of the time and have limited contact with the other parent. Primary/secondary custody means that the child may live primarily with one parent, and the other parent is allowed some degree of visitation rights. Joint custody means the children will split their time equally or close to equally between the parents.

To determine how custody is shared among separated parents, the North Carolina judge will take into account the best interests of the child. This usually includes a wide range of factors, such as:

  • The parent’s ability to take care of the child’s needs on a day-to-day basis, such as getting to and from school/activities, meal prep, homework, etc.
  • Where the parents live and what type of environment they provide for the child
  • The child’s relationship to the parent
  • Relationships with others in the house, school, or community
  • Evidence of violence, drugs, or abuse

In general for legal custody, judges in Mecklenburg County will require that the parents discuss and attempt to mutually agree on major decisions for the child, but will give one parent final decision-making authority if they cannot agree.

For physical custody, judges in Mecklenburg County will work to implement a schedule that maximizes time with both parents. Under North Carolina law, the court cannot deny reasonable visitation unless a parent is unfit or the judge determines that contact with the parent is not in the child’s best interest.

Children may be allowed to voice their opinion to the court. Older teenagers typically have more of a say in the process, but younger children (usually 10 and over) that can communicate their feelings may be allowed to do so. In most cases, family courts will take this testimony into consideration as one of many factors when making their decision. Judges generally do not like to hear from children in custody cases, especially the younger ones.

Can a Custody Order Be Changed?

It is possible to change a child custody order, but it is not necessarily easy. The parent making the request will need to prove that there has been a substantial change of circumstances affecting the welfare of the children since the last order. For more information, read our related post about North Carolina custody laws, 5 Reasons a Judge Will Change a Child Custody Order.

Do You Have to Pay Child Support?

A child with her arms around her father while he is working at a computer

An unmarried father may wonder if he can avoid child support. Prior to establishing paternity, the father has no financial obligation to the child, legally speaking. However, the birth mother can request child support, and if court-ordered genetic tests establish paternity, the father must comply with the court order. This includes custody and support obligations.

The court assumes that the custodial parent, or the parent having primary custody, is already financially supporting the child. Even with joint custody, there is likely still some amount of child support that is required to be paid.

According to North Carolina law, the non-custodial parent must usually pay child support to fulfill their financial obligation to their offspring. This is meant to cover basic needs, daycare, schooling, medical expenses related to the child, and other normal expenses that a parent can expect.

RELATED: What You Need to Know About North Carolina Child Support

If You Are an Unmarried Parent Going Through a Custody Dispute, Call Myers Law For Help

North Carolina custody laws for unmarried parents can be difficult to navigate. An unmarried biological father may be at a disadvantage, unable to see his kids until his biological relationship is established. A mother may be at a disadvantage when child support is waiting on paternity action.

In any case, when your relationship with the other parent has run its course, you may need legal help to determine custody. This is often a very tense situation. Having skilled, respectful advocates like the attorneys at Myers Law Firm can help you achieve a fair outcome.

Call us for a consultation to discuss the specifics of your custody case, and we can advise you of your legal options. Just dial 1-888-376-ATTY (2889) or complete our online contact form to get started today.


Centers for Disease Control and Prevention. (2021, February 8). Percent of Babies Born to Unmarried Mothers by State. https://www.cdc.gov/nchs/pressroom/sosmap/unmarried/unmarried.htm

N.C. Gen. Stat. § 49-14.

Administrative Office of the Courts. (2017). Affidavit of Parentage. https://www.nccourts.gov/assets/documents/forms/cv604-en.pdf?gO1L0NiHGJkCFV7DchOVHCueJd2qWwie

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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