LEGITIMACY AND LEGITIMATION — PRESUMPTION AND EVIDENCE — NORTH CAROLINA

Beginning July 7, 1981, North Carolina no longer follows the Lord Mansfield Rule in paternity cases. (Lord Mansfield Rule, North Carolina, RAIV, [W~], to Associate Commissioner for Operational Policy and Procedure, May 31, 1983.)

PARENT & CHILD — FEDERAL DEFINITION OF CHILD — OTHER EVIDENCE OF PATERNITY — NORTH CAROLINA

A North Carolina District court order issued pursuant to the child support provisions of N.C. Gen. Stat. §§110-128 - 110-141 is entitled to substantial weight .in the absence of any contradictory evidence on the issue of paternity.

(Legitimacy under North Carolina law - Applicability of Lord Mansfield Rule - Court Order of Paternity Involving Third Party, AN ~ Maryland S~, DWE, RAIV, [W~], to Assistant Regional Commissioner, Insurance Programs Branch, June 28, 1983.)

In your memorandum of February 24, 1983 you asked two questions. First, you asked whether the Lord Mansfield Rule was still applicable in North Carolina. Second, you asked whether a 1977 North Carolina court order of paternity would be "admissible" to rebut the presumption of legitimacy of four children born in wedlock. In response to your first question, a recent opinion from this office has concluded that the Lord Mansfield Rule was abrogated in North Carolina on and after July 7, 1981. (Lord Mansfield Rule, North Carolina, RAIV, [W~], to Associate Commissioner for Operational Policy and Procedure, May 31, 1983.) A copy of that opinion is attached. Consequently, this opinion will address your second question regarding the 1977 North Carolina court order of paternity.

According to the file, Edna S~ ceremonially married the insured on March 25, 1959 in North Carolina. The couple separated in 1960 but were never divorced. During the period 1963-1968, four children were conceived and born to the insured's wife. Samuel B~ has admitted, in writing, that he dated the insured' for a 13-year period (1963-1976) and has further acknowledged, in writing, that he is the natural father of the four children born to the insured's wife during the period 1963-1968. Although allegedly separated, the insured and his wife continued to see one another at least during the period 1963-1968. According to Samuel the insured would be at his wife's house at least part of the time while Samuel B~ was dating the insured's wife.

A North Carolina District court order dated May 10, 1977 determined that Samuel B~ was the natural father of the four subject children. This order was based largely upon the written acknowledgement of paternity executed by Samuel B~ and a written affirmation of paternity executed by the insured's wife. Incident to this judicial proceeding, Samuel B~ voluntarily agreed to contribute child support in the amount of $30 per month beginning June 1, 1977. The insured died on August 4, 1980. This child support was payable to the Superior Court clerk and thereafter, delivered to the North Carolina Department of Human Resources. The written acknowledgment of Samuel B~, the affirmation of the insured's wife and the resulting court order of paternity and support were all incident to the statutory authority contained in North Carolina Gen. Stat. Chapter 110. Under this Chapter 110, a county has the duty to seek contributions from the parent(s) of those dependent children who are seeking public assistance in those situations where the natural parent is financially capable of providing such assistance.

Pursuant to N.C. Gen. Stat. §49-14, the paternity of a child born out of wedlock may be established by a civil action but such establishment of paternity shall not have the effect of legitimation. This statute requires that the proof of paternity be established beyond a reasonable doubt. Under the law of North Carolina there is strong presumption that a child born during wedlock is the natural, legitimate child of the married parties. This presumption can be rebutted only if it is established that the husband was impotent or did not have access to the wife at the time when the child was conceived. Further, since the Lord Mansfield Rule is no longer applicable, the husband or wife are competent to testify as to the child's illegitimacy. Wake County Ex. Rel. Manning v. Green, 279 S.E.2d 901 (1981). If the husband and wife are living together, evidence that the wife had sexual relations with a man other than her husband is not sufficient to bastardize the child since the husband's lack of access cannot be established. Ray v. Ray, 219 N.C. 217, 13 S.E.2d (1941). However, the Supreme Court of North Carolina has indicated that a different rule would be applicable if the husband and wife are living apart and the wife is "notoriously living in open adultery." State v. Green, 210 N.C. 162, 185 S.E. 670 (1936); Ray v. Ray, supra.

In the present case, there is evidence that the insured visited his wife from time to time while allegedly separated and during the periods of time when the subject children were conceived. If the paternity issue were to be resolved pursuant to a civil action under N.C. Gen. Stat. §49-14, we would be clearly faced with weighing the effect of the abrogation of the Lord Mansfield Rule and its impact upon the strong if not irrebuttable presumption of legitimacy where the insured apparently had access to his wife at a time when the subject children were conceived. However, the court order of paternity in the present case was not a result of a civil action pursuant to N.C. Gen. Stat. §49-14. The present court order arose from proceedings incident to North Carolina Gen. Stat. §§110-128 - 110-141. The purposes of this legislation include assuring financial support to dependent children as a supplement to the support provided by the responsible parent. N.C. Stat. §110-128. The county may initiate civil proceedings or take up proceedings commenced by the mother to establish paternity as well as child support. N.C. Gen. Stat. §110-130. A parent may be subpoenaed for testimony to establish both paternity and support. The parent shall not be excused from giving testimony pursuant to any privilege which would otherwise be available. N.C. Gen. Stat. §110-130. In lieu of or in conclusion of any legal proceeding to establish paternity, the written acknowledgment of paternity executed by the putative father when accompanied by a written affirmation of paternity executed by the mother and approved by the judge of the District Court as in the present case shall have the same force and effect as a judgment of that court. A written agreement to support when approved by the District Court as in the present case, shall have the same force and effect as an order of support from the District Court and enforceable accordingly. N.C. Gen. Stat. §110-132. Following the filing of the acknowledgment of paternity with the District Court, the declarant will be summoned to court to show cause, if any, why an order of support should not issue. The prior judgment of paternity shall be res judicata as to that issue. N.C. Gen. Stat. §110-132.

In the present case, the District Court judgment of paternity and support was the result of proceedings pursuant to N.C. Gen. Stat. 110-132. The putative father's written acknowledgment of a voluntary support agreement, and the mother's written affirmation of paternity constituted the basis for the court's paternity and support orders. It is implicit from this statutory scheme that any presumption of legitimacy has been rebutted and the "beyond a reasonable doubt" standard of proof has been satisfied with the written acknowledgment of paternity executed by the putative father and the written affirmation of paternity executed by the mother.

Although the Social Security Administration is not bound by ex parte State court orders (judgments), the court's orders in the present case are consistent with the law of North Carolina and the apparent facts of this case. Therefore, it is the opinion of this office that you would be justified in according substantial weight to these court orders in the absence of any new and contradictory evidence.

LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — NORTH CAROLINA

Following the July 7, 1981 decision in Wake County Ex Rel. Manning v. Green, 279 S.E.2d 901 (N.C. Ct. of App. 1981), North Carolina no longer followed the Lord Mansfield Rule in paternity cases.

(Lord Mansfield Rule, North Carolina, RAIV, [W~], to Associate Commissioner for Operational Policy and Procedures, May 31, 1983)

In your memorandum dated February 10, 1982, you attached a newspaper article discussing the case of Wake County Ex Rel. Manning v. Green, 279 S.E.2d 901 (N.C. Ct. of App. July 7, 1981). In light of this article, you asked if North Carolina still follows the Lord Mansfield Rule.

In Wake County Ex Rel. Manning v. Green, supra, the Court of Appeals of North Carolina discuss the Lord Mansfield Rule at length and concluded that there was no justification for a rule which excluded the best evidence of access or nonaccess in paternity actions. In its discussion, the Court noted several instances in which the Lord Mansfield Rule had obviously been undermined by the courts and General Assembly of North Carolina. For example, North Carolina adopted the Uniform Reciprocal Enforcement of Support Act in 1951 and amended the same in 1975. N.C. Gen. Stat. §52 A-18. From its inception this Act has rendered inapplicable laws attaching a privilege against the disclosure of communications between husband and wife in proceedings under that Act. Additionally, the Supreme Court of North Carolina in State v. White, 268 S.E.2d 481 (July 15, 1980), implicitly rejected the rule in criminal nonsupport actions. Further, the General Assembly, effective October 1, 1981, abrogated the rule in all civil and criminal proceedings in which paternity is at issue. N.C. Gen. Stat. §8-57.2.

Although the rule was obviously undermined in specific instances prior to the decision in Wake County Ex Rel. Manning v. Green, supra, as above referenced, and although there was legislation which abrogated the rule in paternity cases subsequent to the date of the opinion in Wake County Ex Rel. Manning v. Green, supra, it is the opinion of this office that the Lord Mansfield Rule was abrogated in paternity actions on the date of the decision in Wake County Ex Rel. Manning v. Green, supra, (July 7, 1981).