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How Are Child Custody Laws Different for Unmarried Parents?

More than 40% of North Carolina children are born to unmarried parents. Unfortunately, if these parents decide to part ways, child custody can get complicated quickly.

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?

As a biological parent in North Carolina, you’re allowed to be a part of your child’s life. This includes seeing them regularly and influencing important decisions on their behalf.

The state recognizes the mother as a parent as soon as a child is born. Unfortunately, the same recognition isn’t always extended to the father. Custody and even visitation might be off the table until paternity rights are clearly established.

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

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How Can You Show 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 witness to make the paternity official, establishing paternal rights and allowing the father’s name on the child’s birth certificate.

If the parentage is undetermined, a judge will try to establish paternity, which will involve the father being asked to submit to a DNA test. The 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: The courts will likely take this as a solid sign of parentage, and it would take overwhelming contradictory evidence to prove otherwise.

What Happens After Paternity Is Established?

Once you’ve established paternity, both parents have equal parental rights to each other. The law does not favor one parent over the other. This is the same for both married and unmarried couples.

In North Carolina, 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. Shared physical custody means the children will split their time equally or close to equally between the parents.

To determine how custody is shared among parents, the 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
  • How the parent can help the child grow and mature
  • The child’s relationship to the parent
  • Relationships with others in the house, school, or community
  • Evidence of violence, drugs, or abuse

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 up, capable of communicating their feelings may be allowed to do so. In most cases, the judge 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.

RELATED: Denied Child Custody or Visitation? Here’s What to Do

Can You Change a Custody Order?

Custody orders are subject to change, but they aren’t necessarily easy to change. The parent making the request will need to prove that recent events or changes necessitate an updated custody order.

  • The child’s quality of life has recently changed
  • One parent might want to move to another state with the child
  • One parent could request new rules when the other is regularly breaking their order

Finding Help with Custody

Custody orders are subject to change, but they aren’t necessarily easy to change. The parent making the request will need to prove that recent events or changes necessitate an updated custody order.

  • The child’s quality of life has recently changed
  • One parent might want to move to another state with the child
  • One parent could request new rules when the other is regularly breaking their order

References

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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