Background. Baby born out of wedlock. Only mother listed on birth certificate. Father unknown. Man that says he is the father filed a motion for custody with a temporary custody hearing set up. Orientation for mediation occurred before mother was served so she was not in jurisdiction to attend nor did she know about it. He has yet to establish paternity. Mother will be answering motion stating that #3 (and #9 - he is the most fit parent) on his complaint is false because father is unknown and he is claiming he is indeed the biological father. The question I have is will the judicial system throw out the temporary custody hearing upon receipt of the answer that paternity is not established? Or if the hearing still occurs will the judge be told then (by mother that she answered motion and paternity is unknown) that paternity is unknown and then the judge will cancel it until paternity established??? Or will a true temporary custody hearing still occur with this man that claims he is the father??? Thank you!
The custody action filed by the alleged father will not be able to proceed if the mother files an answer denying that the alleged father is the natural and biological parent to the child in which custody is at issue. The mother should also file a motion to dismiss the complaint as the alleged father would likely not have standing to bring a custody action if he is not a natural and biological parent.
The Court will not throw out the custody case upon receipt of the mother’s answer, but, after a hearing on the mother’s motion to dismiss, the Court may dismiss the action at that time or order a paternity test to be done.
The Court will be unable to make a custody determination if the issue of who the natural and biological parents of the child are at issue and the two parties to the custody action are the mother and the alleged father.
To establish paternity, the mother can file a paternity action against the alleged father.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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