Tag: legitimation
  • Legitimation Proceedings and a Change in the Child’s Surname

    A legitimation is a special proceeding that is heard in the superior court (by the clerk, unless a transfer to superior court is required by G.S. 1-301.2(b)). G.S. 49-10; 12.1(a). The purpose of the proceeding to is to address the status of a child who is born out of wedlock and have him or her declared the legitimate child of the mother and father. See id. It also imposes on the mother and father all the rights, privileges, and obligations of a parent to the child and entitles the child and parent to inherit by succession. G.S. 49-11. The sole issue before the court is whether the putative father who initiated the proceeding is the biological father of the child. In re Papathanassiou, 195 N.C. App. 278 (2009). If so, a legitimation order is entered. After the order of legitimation is entered, the clerk must send a certified copy to the State Registrar of Vital Statistics (Vital Records). G.S. 49-12.1(e); -13.

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  • To Amend or Not Amend, That is the Question

    I recently taught in a course for clerks on proceedings involving minors.   One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130A-107.  Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual.  The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not.   The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth.   If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.

    These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate.  Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading

  • Legitimation versus Paternity: What’s the Difference?

    *This post was updated on 10/24/16 to add citations for district court jurisdiction of paternity actions

    Earlier this month, my colleague, Meredith Smith, posted about Intestate Succession Rights and Children Born Out of Wedlock. Her post was prompted by In re Estate of Williams, ___ N.C. App. ___ (March 1, 2016), which addressed the application of G.S. 29-19(b) when determining whether the decedent’s child was an heir entitled to intestate succession. What caught my attention in the opinion were excerpts from both the orders of the clerk and the superior court  that referred to the process of legitimating a child pursuant to G.S. 29-19(b)(1) and (3). However, G.S. 29-19(b) addresses paternity, not legitimation. Legitimation for purposes of intestate succession is addressed in G.S. 29-18 (father and mother) and G.S. 29-19(a) (mother). So what is the difference? Continue Reading

  • Intestate Succession Rights and Children Born Out of Wedlock

    A 21-year old unmarried man dies without a will. An application for letters of administration is filed with the clerk of superior court by his mother and father. The only persons identified on the application as entitled to share in the decedent’s estate are his mother and father. No spouse or child is listed. No property is listed on the preliminary inventory included in the application as property of the estate or property that may be added to the estate to pay claims. The only other property identified is a potential claim from wrongful death under G.S. 28A-18-2. Based upon the application and an oath/affirmation from both parents, the clerk of superior court enters an order authorizing the issuance of letters and issues letters of administration to the parents of the decedent.

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