Dear Customer (name blocked for privacy),

NO you do not. YOu do not have to change the name.

A biological father is responsible for paying child support unless the child was adopted by someone else or his parental rights were severed by court action.

Now it can be argued in court that your husband may have actually accepted responsibilit for the child by agreeing to place his name on the Birth Certificate. And that amounts to adoption, there by relieving the other person.

But this is something determined by the court, not written in law. The law does not state the condition of the child's last name.

DEERS...Thanks for that. OK so now we are not talking court here, we are talking military regualtion. That presents a vastly different discussion.

In order to enroll a child into deers, one of the following conditiosn has to be met:

1. The birth certificate shows him to be the father. (the easy solution)
2. There is an adoption paper. (not applicable in this case)
3. There is a court order for support and paternity (the expensive solution because you have to go to court).

The fastest way...change the name on the birth certificate as you wanted to do in the first place.

If the name become an issue when she is older, the name can be changed without causing her to be disenrolled from DEERS.

If your husband is not going to retire from the military, enrollling her under the bio-logical father's name would ensure life time benefits.

 

 

 

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YOUR PAYMENT AND BONUS IF ANY MAY BE TAX DEDUCTIBLE

Edward M. Johnson

YOUR QUESTION (slightly revised for ease of understanding):
I had a child from an affair but my husband's name is on her birth certificate. My husband has agreed to stay together to work it out. But he wants the father to take responsibility. And the father does not deny his paternity of the child and is willing to do what is needed. I need to correct the birth certificate so as to remove my husband’s name and replace it with the child’s biological father. So my question is how do I get her birth certificate and last name changed to reflect her fathers information under NC law?

ANSWER:
Under NC law, the husband of a woman who gives birth to a child during the course of her marriage to her husband is presumed, by law, to be the child’s natural father and is considered the child’s legal father until it is legally determined that he is not the child’s father. Further, the legal presumption that a husband is the father of a child born to his wife during the course of their marriage may be rebutted by blood or genetic test results proving that he could not be the child’s biological father. See Write v. Write, 281 NC 159, 188 S.E.2d 317 (1972).

So here’s what you need to do:

First, get a DNA test that evidences your husband’s biological nonpaternity of the child born during the marriage.

Second, file a action with the court seeking a declaratory judgment adjudicating your husband’s nonpaternity of the child, evidenced by the blood test results, which will be sufficient to rebut the legal presumption of your husband’s paternity of the child.

Third, after husband’s presumed paternity of the child has been rebutted and his nonpaternity has been declared, you may then file a paternity establishment proceeding against the biological father. Assuming the biological father does not deny his paternity of the child and is willing to do what is needed, he can the stipulate to a court Judgment establishing him as the child’s legal father. If you want, you may include in the judgment document a provision by which the judge legally changes the child’s name. (NOTE: This is not required. Indeed, if you and your husband are going to remain married and living together, it may be preferable for your child to have you husband’s last name.)

Fourth, submit a certified copy of the court’s Judgment to Vital Records. The agency will then implement the court’s judgment and amend the child’s birth certificate accordingly.

Fifth, after the biological father has been established as the child’s legal father, you can then seek to have a child support order imposed. Contact the Child Support Enforcement agency in North Carolina and submit an application for support enforcement services. They will then assist you in getting child support established.

Lastly, you do NOT need to change the child’s name to that of the biological father's name on the child’s birth certificate in order to file for child support against the biological father after he has been declared to be the child’s legal father. The name of the child has nothing to do with the legal father’s obligation to support his child.

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Lawrence D. Gorin, Oregon Lawyer

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