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Disestablishment of
Paternity & Support
For Child Support Attorneys
Motions Filed – GS 49-14(h)
Motion Filed
Properly served? Notice of Hearing - 5 days notice?
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Motion Filed
Filed in underlying paternity case?
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Whose Order
North Carolina order?
Jurisdiction?
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Pleadings
Fraud Duress Mutual Mistake Excusable Neglect
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Who Is Movant
A party to existing action?
Does he have standing?
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Motion Is Sufficient
Prepare for hearing
Motions Filed – GS 49-14(h) / 110-132
Review complete file
Confer with Child Support case manager
Meet with custodian
Is motion to dismiss appropriate?
Motions Filed – GS 49-14(h) / 110-132
Consider Motion To Dismiss
If not alleged with particularity
If previous paternity testing
If movant knew he was not father
Motions Filed – GS 49-14(h) / 110-132
Prior Paternity Test
Court ordered?
Chain of Custody verified?
No? Move to strike
Motions Filed – GS 49-14(h) / 110-132
Burden of Proof
Belongs to Movant
Need Findings of Fact, Conclusions of Law
Appeal - request stay
Court incorrect – petition for writ
Motions Filed – GS 49-14(h) / 110-132
Paternity Test Results
97 % & higher – rebuttable presumption of
paternity
85 % – 97% - same weight as other evidence
Less than 85% - rebuttable presumption of non-paternity
Motions Filed – GS 49-14(h) / 110-132
Court Determination
Paternity test - not father
Prior order - fraud, duress, mutual mistake or
excusable neglect
Court’s discretion to set aside paternity
Motion Filed – GS 50-13.13
New Civil Action
Proper Summons & Complaint? Service of Process? Timely Service? Endorsement?
No? Move to Dismiss
Motions Filed – GS 50-13.13
Plaintiff - Father Required to Support
Chapter 49 (Legitimation) Chapter 50 (Custody, support) Chapter 52C (Interstate) Chapter 110 (Title IV-D) Chapter 52-10.1 (Separation agreement)
No? Move to Dismiss
Motions Filed – GS 50-13.13
Whose Order
North Carolina order?
Jurisdiction?
No? Move to dismiss
Motions Filed – GS 50-13.13
When Did He Know
Knew or should have known
Longer than 1 year?
Move to dismiss
Motions Filed – GS 50-13.13
Complaint Verified
No?
Move to dismiss
Motions Filed – GS 50-13.13
How Does He Know
Are allegations clearly stated?
No? Move to dismiss
Motions Filed – GS 50-13.13
Allegations
Did not acknowledge paternity?
Acknowledged not knowing his is not father
No? Move to dismiss
Motions Filed – GS 50-13.13
Adoption / Legitimation
Has he adopted child?
Has he legitimated child?
Yes? Move to dismiss
Motions Filed – GS 50-13.13
Legitimation
By marriage?
When mother married to another man?
By artificial insemination
Yes? Move to dismiss
Motions Filed – GS 50-13.13
Plaintiff in Military
Default judgment?
Date of separation?
Motions Filed – GS 50-13.13
Guardian Ad Litem
On behalf of child
At discretion of Court
Motions Filed – GS 50-13.13
Paternity Testing
Court order
GS 8-50.1 governs admissibility, weight
Failure to comply – contempt, sanction
Motions Filed – GS 50-13.13
Suspension of Support Obligation
Suspended in IV-D case
Not suspended if support paid to
mother
Motions Filed – GS 50-13.13
Support Obligation Termination
If paternity test indicates non-paternity
If plaintiff did not acknowledge paternity
Motions Filed – GS 50-13.13
Support Obligation Termination
If plaintiff acknowledged paternity not knowing
he was not father
Motions Filed – GS 50-13.13
Plaintiff Does Not Meet Requirements
Court must: Deny motionBad faith – award fees to prevailing party
Support order remains in effect
Motions Filed – GS 50-13.13
Plaintiff Meets Requirements
Court must order: Ongoing support terminated Arrearage remains due and owing Clerk of court to notify State Registrar
Motions Filed – GS 50-13.13
Plaintiff Meets Requirements
Court may:
Tax paternity test costs to mother
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