New Protections Against False Paternity and Child Support Claims in North Carolina
Monday, February 13, 2012 at 9:00AM As of January 1 of this year, men in North Carolina have some new protections from false paternity claims.
Since the beginning of this year, new laws have been in effect that provide new procedures for men who want to dispute that they are the father of a child.
The legislature amended or created three laws that give fathers a clear-cut process for asking a court to officially declare that they are not the father of a child.
Specifically the new laws provide a way to ask a court to overturn a paternity order, an affidavit of parentage or a child support order if the father believes he is not the father of the child.
However, the alleged father has only one year from the time he knew or had reason to know that he was not the father to challenge paternity under these new laws.
The new laws for overturning paternity orders or affidavits of parentage require two showings: First, a father must prove that the paternity order or affidavit was created by “fraud, duress, mutual mistake, or excusable neglect.” If a father files a motion alleging sufficient facts, then the court has to order genetic testing of the mother, child and alleged father to determine whether the alleged father is the actual father.
If the alleged father can prove fraud, duress, mutual mistake or excusable neglect AND the genetic tests show that he is not the father, then the court can set aside the paternity order or affidavit.
Further, a new statute allows men to ask a court to let them out of child support if they can prove by clear and convincing evidence that:
1. He has not acknowledged paternity of the child, or that he acknowledged paternity without knowing that he was not the actual father (“acknowledgement” includes public acknowledgement and supporting the child while married to the mother, sworn statements and affidavits claiming to be the father, consent orders, voluntary child support agreements, or any other legal agreement to support the child, and admissions of paternity in open court); and
2. He had not adopted the child; and
3. He has not legitimated the child; and
4. He is not the child’s legal father under N.C.G.S. 49A-1; and
5. He has not done anything to prevent that actual father from asserting his parental rights to the child; and
6. Genetic testing shows that he is not the actual father.
If the man can show all of the above facts (no juries are used in these cases), then the court is required to cancel the child support obligation. However, the man generally does not get any money back that has already been paid. (The man can get any support that he has paid from the filing of this motion until the cancellation of the support obligation if he can prove that the mother conned him into believing he was the father). The man cannot get any money back if he has been making payments to anyone other than the mother. The court also has to order that the birth certificate be changed to remove the man’s name.
Men and their attorneys have long cried out for a better way to challenge false paternity claims. They now have relatively clear processes for defending themselves from these claims.