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For most families going through the divorce process, there’s no issue more important than custody. The parent-child relationship is so important that North Carolina, like many states, has laws that protect that special relationship and seek to ensure that each parent can continue to share custody and be actively involved in the child’s life, both during and after the divorce process.

While this is true, it’s also true that custody matters, like any other divorce issue, can be complex. Many parents wonder what exactly what their rights are and how they can work toward a custody arrangement that works best for their family.  Particularly when it comes to fathers’ rights, there can often be some confusion and misinformation. 

A Look at the History of Father’s Rights

There is often confusion regarding fathers’ rights because historically, many courts around the country used to favor mothers over fathers in matters of child custody and child support. Traditionally, this was because mothers were seen as the primary nurturers and caregivers of children. This was historically the case in times when fathers would work, and most mothers would stay home with the children.

Of course, this is no longer the case today for many families. Today, many families around the country have two working parents who are both actively involved in the care and nurture of their children. Today, both parents participate actively in many aspects of their children’s lives. Both parents earn an income. Both parents drive the children to and from school, medical appointments, and extracurricular activities. Both parents are actively involved in caring for the children at home. Nevertheless, some misinformation still lingers.

As a result, many fathers find themselves at the beginning of the divorce process feeling frightened and anxious over what might happen concerning custody. Some fathers have heard difficult stories of other fathers losing custody when it seemed that they didn’t deserve to. Many fathers worry that mothers might still be favored and that they might have an uphill battle when it comes to asserting their custody rights. Those worries are understandable – but are they realistic? Let’s take a closer look at fathers’ rights when it comes to custody in North Carolina.

Establishing Paternity

In North Carolina, if a couple is married and has a child, both parents are presumed to be the legal and biological parents of the child. In that case, they share all of the rights and responsibilities of being parents. This is not necessarily the case for unmarried couples. If an unmarried couple has a child, North Carolina law will not automatically recognize the parent-child relationship between the father and the child. Often, further action is required.

There are a variety of reasons why unmarried parents can and should work toward establishing their child’s paternity in North Carolina. These include:

  • Establishing paternity will create obligations to pay child support and medical expenses, purchase insurance, pay for daycare and education, and other expenses. If the parents are not living together, establishing paternity will place financial responsibility upon both parties instead of just one.
  • Establishing paternity allows the parents to co-parent and make joint decisions concerning the child’s upbringing.
  • Establishing paternity provides the father with the right to seek custody and visitation with the child.
  • Establishing paternity will give the child access to the medical history of both its mother’s and father’s side of the family.
  • Establishing paternity may allow the child the opportunity to qualify for a variety of benefits through both of his parents including insurance, Social Security, federal and state benefits, inheritance, and more.

A father seeking to have his rights recognized under the law will need to seek to officially establish paternity. Typically there are two ways to do so:

  • Signing an affidavit of parentage: An affidavit of parentage is a voluntary process that can be completed at the hospital when the child is born or shortly thereafter. The affidavit is essentially a sworn statement that is signed by the child’s mother and father in the presence of a witness, stating that the father is the biological parent of the child. The affidavit is then filed with the office of vital statistics and is considered a legally binding contract.
  • Filing a paternity action: A paternity action can be brought to the court either by the child’s mother, presumed father, or lawyer representing child support services in instances where the mother may be receiving state assistance and seeking to establish the paternity of her child for legal purposes. After the case has been filed, the parties can either settle it or take it to court. If the case goes to court, genetic testing may be ordered by the judge. If the alleged father matches the child’s DNA by at least 97% he is named the child’s legal and biological father and a final paternity order is issued.

As with any legal matter, if there are questions of paternity in your case, the first and most important step toward addressing that issue effectively will be consulting with an attorney who knows and understands the law and can provide personalized guidance as to your specific circumstances.

Custody Rights for Established Fathers

If paternity is in fact established, then the next question is, what rights does a father have? To understand the answer to this question, it is important to understand that there are generally two types of custody in North Carolina:

  • Physical Custody: Physical custody concerns where the children spend time, in a physical sense. Who do they reside with? Where do they spend the nights? Where are they, in a physical sense, and at what times?
  • Legal Custody: Legal custody concerns the rights of parents to make important decisions about their children’s lives. These may be decisions about educational issues, religion, medical care, and other important matters. Legal custody is not dependent upon the location of the children, and parents can share legal custody regardless of where they reside.

In North Carolina, both physical and legal custody can be shared in any number of ways. Parents can choose to address their custody issues outside of a courtroom, and if they can do so, this is often an ideal option for everyone involved. Addressing issues cooperatively and collaboratively outside of court gives parents the freedom and flexibility to truly create a custody arrangement that best suits their family.

Often, joint legal custody is the norm. This means that both parents get to share in making decisions regarding important matters in their child’s lives. Ideally, parents will be able to discuss things like extracurricular activities, public and private schooling, medical care, and other matters. Physical custody, on the other hand, can be addressed in any number of ways. If parents live close together, they may share custody evenly. If they live further apart, the children may live with one parent during the week, and the other parents on weekends, holidays, or summer breaks. Any number of options are available, and parents can truly seek to make decisions that they feel will best fit their children’s needs.

Addressing Custody Issues in a Courtroom

Resolving custody issues outside of court in an agreement is ideal if the parties can do so. In some cases, however, this simply isn’t possible. In those situations, a court will decide for the parties and issue a binding order after considering all of the evidence. In North Carolina, courts make custody decisions based on an evaluation of what is in the “best interest and welfare” of the children involved in the case.

To make this determination, a judge will look at a wide variety of factors relevant to the child’s life. It is important to remember that the law does not favor one parent over the other, and both the mother and father are to be treated equally. Once the final order is issued by the court, the parties are required to follow its directives until such time as the order is modified.

Ultimately, the good news for all parents going through a divorce is that the courts in North Carolina and across the country are actively seeking ways to increase parental involvement in children’s lives and to ensure that both parents can be an active part of their child’s upbringing even after divorce. This means that fathers who care about their children and seek to be involved in their lives and work toward their best interests will always have rights to their children in an important role to play.



Divorce can be difficult even in the best of circumstances. Most parents want to ensure that they help their children through the process as smoothly as possible, and work toward ensuring that their children’s best interests are protected.  At The Law Office of Dustin McCrary, we are here to help you do exactly that.  We know and understand every aspect of the divorce process. Regardless of whether you are facing difficult custody issues or any other matter, you should never feel like you are alone. We are here to meet you where you are and guide you through the process toward a better and brighter chapter ahead. If you’re ready to get started, give us a call. We look forward to helping you soon.

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