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
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.