{
  "id": 8521554,
  "name": "EDDIE JONES, Petitioner v. JULIE McDOWELL and TRENDA JUNAE McDOWELL, by and through her Guardian Ad Litem ERNESTINE McDOWELL, Respondents v. DR. SARAH MORROW, Secretary of Human Resources and DR. RONALD H. LEVINE, State Registrar of Vital Statistics, Third-party Petitioners",
  "name_abbreviation": "Jones v. McDowell",
  "decision_date": "1981-08-18",
  "docket_number": "No. 8014SC1000",
  "first_page": "434",
  "last_page": "443",
  "citations": [
    {
      "type": "official",
      "cite": "53 N.C. App. 434"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "N.C. Gen. Stat. \u00a7 49-10",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 2,
      "opinion_index": -1
    },
    {
      "cite": "31 L.Ed. 2d 246",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "92 S.Ct. 1197",
      "category": "reporters:federal",
      "reporter": "S. Ct.",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "405 U.S. 970",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11747911,
        11747979,
        11747834,
        11748185,
        11748122
      ],
      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
        "/us/405/0970-02",
        "/us/405/0970-03",
        "/us/405/0970-01",
        "/us/405/0970-05",
        "/us/405/0970-04"
      ]
    },
    {
      "cite": "341 F. Supp. 217",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        3605152
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/341/0217-01"
      ]
    },
    {
      "cite": "254 S.E. 2d 762",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "297 N.C. 206",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568364
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc/297/0206-01"
      ]
    },
    {
      "cite": "439 U.S. 259",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11329641
      ],
      "weight": 3,
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/us/439/0259-01"
      ]
    },
    {
      "cite": "430 U.S. 762",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        12127757
      ],
      "weight": 3,
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/us/430/0762-01"
      ]
    },
    {
      "cite": "101 S.Ct. 1195",
      "category": "reporters:federal",
      "reporter": "S. Ct.",
      "case_ids": [
        6187149
      ],
      "weight": 3,
      "year": 1981,
      "opinion_index": 0,
      "case_paths": [
        "/us/450/0455-01"
      ]
    },
    {
      "cite": "442 U.S. 256",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        1532186
      ],
      "weight": 3,
      "year": 1979,
      "pin_cites": [
        {
          "page": "273"
        },
        {
          "page": "2293"
        },
        {
          "page": "883-84"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/442/0256-01"
      ]
    },
    {
      "cite": "441 U.S. 380",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        1779879
      ],
      "weight": 3,
      "year": 1979,
      "pin_cites": [
        {
          "page": "388"
        },
        {
          "page": "1766"
        },
        {
          "page": "304-305"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/441/0380-01"
      ]
    },
    {
      "cite": "419 US 522",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6176665
      ],
      "weight": 3,
      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/us/419/0522-01"
      ]
    },
    {
      "cite": "420 US 636",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11644378
      ],
      "weight": 3,
      "year": 1975,
      "pin_cites": [
        {
          "page": "643"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/420/0636-01"
      ]
    },
    {
      "cite": "421 US 7",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        541737
      ],
      "weight": 13,
      "year": 1975,
      "pin_cites": [
        {
          "page": "13"
        },
        {
          "page": "14-15"
        },
        {
          "page": "13"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/421/0007-01"
      ]
    },
    {
      "cite": "419 US 498",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6176462
      ],
      "weight": 6,
      "year": 1975,
      "pin_cites": [
        {
          "page": "506-507"
        },
        {
          "page": "508"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/419/0498-01"
      ]
    },
    {
      "cite": "411 US 677",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        10299
      ],
      "weight": 6,
      "year": 1973,
      "pin_cites": [
        {
          "page": "690"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/411/0677-01"
      ]
    },
    {
      "cite": "429 U.S. 190",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6079
      ],
      "weight": 5,
      "year": 1976,
      "pin_cites": [
        {
          "page": "197-99"
        },
        {
          "page": "407-408"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/429/0190-01"
      ]
    },
    {
      "cite": "404 U.S. 71",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6170912
      ],
      "weight": 9,
      "year": 1971,
      "pin_cites": [
        {
          "page": "75-76"
        },
        {
          "page": "229"
        },
        {
          "page": "75"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/404/0071-01"
      ]
    },
    {
      "cite": "386 So. 2d 844",
      "category": "reporters:state_regional",
      "reporter": "So. 2d",
      "case_ids": [
        9590899
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/so2d/386/0844-01"
      ]
    },
    {
      "cite": "417 F. Supp. 769",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        3879782
      ],
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/417/0769-01"
      ]
    },
    {
      "cite": "366 N.E. 2d 717",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1977,
      "opinion_index": 0
    },
    {
      "cite": "373 Mass. 178",
      "category": "reporters:state",
      "reporter": "Mass.",
      "case_ids": [
        323845
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/mass/373/0178-01"
      ]
    },
    {
      "cite": "466 F. Supp. 714",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        4064504
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/466/0714-01"
      ]
    },
    {
      "cite": "381 U.S. 479",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6172057
      ],
      "weight": 3,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/us/381/0479-01"
      ]
    },
    {
      "cite": "405 U.S. 645",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11723248
      ],
      "weight": 10,
      "year": 1972,
      "pin_cites": [
        {
          "page": "656"
        },
        {
          "page": "658"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/405/0645-01"
      ]
    },
    {
      "cite": "410 U.S. 113",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11957048
      ],
      "weight": 3,
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/us/410/0113-01"
      ]
    },
    {
      "cite": "414 U.S. 632",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11716587
      ],
      "weight": 6,
      "year": 1974,
      "pin_cites": [
        {
          "page": "650"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/414/0632-01"
      ]
    },
    {
      "cite": "431 U.S. 816",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        2109
      ],
      "weight": 3,
      "year": 1977,
      "pin_cites": [
        {
          "page": "842"
        },
        {
          "page": "2108"
        },
        {
          "page": "33"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/431/0816-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 980,
    "char_count": 21148,
    "ocr_confidence": 0.792,
    "pagerank": {
      "raw": 5.602238464325523e-08,
      "percentile": 0.3510281873576413
    },
    "sha256": "93d0ad2fd8ccb2984dfa39708a4df1a4b58a8e48ba2dbe0a01220c23d44262fc",
    "simhash": "1:60f53620685b8284",
    "word_count": 3448
  },
  "last_updated": "2023-07-14T21:33:41.579477+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Hedrick and Clark concur."
    ],
    "parties": [
      "EDDIE JONES, Petitioner v. JULIE McDOWELL and TRENDA JUNAE McDOWELL, by and through her Guardian Ad Litem ERNESTINE McDOWELL, Respondents v. DR. SARAH MORROW, Secretary of Human Resources and DR. RONALD H. LEVINE, State Registrar of Vital Statistics, Third-party Petitioners"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nThe initial question to be determined in this appeal is whether respondents have a constitutionally protected liberty or privacy interest in retaining Trenda Junae McDowell\u2019s surname, of which they cannot be deprived without due process of law. The Supreme Court of the United States has held in a number of recent cases that the \u201cfreedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.\u201d Smith v. Organization of Foster Families, 431 U.S. 816, 842, 97 S.Ct. 2094, 2108, 53 L.Ed. 2d 14, 33 (1977), quoting with approval Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed. 2d 52 (1974). See also Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed. 2d 510 (1965). We hold that this constitutional protection of certain matters of family life extends to the interest of the mother of an illegitimate child in retaining the surname given the child at birth. See Jech v. Burch, 466 F. Supp. 714 (D. Haw. 1979); Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 366 N.E. 2d 717 (1977); Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976); see also dissenting opinion in Rice v. Dept. of Health & Rehabilitative, 386 So. 2d 844 (1980). The petitioners contend that the statutory scheme of notice and hearing under G.S. 49-10 and 49-13 satisfies the dictates of the due process clause. Mere notice and hearing, however, is not enough to supply due process if the statutory scheme also predetermines the outcome, as is the case here. It is arbitrary action by the State, however accomplished, that the due process clause guards against.\nThe second question for our determination, therefore, is whether the statutory scheme for changing an illegitimate child\u2019s surname upon legitimation pursuant to the provisions of G.S. 49-10 and 49-13 utilizes a gender based classification repugnant to respondent\u2019s rights under the Fourteenth Amendment to equal protection of laws. The question of the validity of gender based statutory classification has been before the United States Supreme Court in a number of recent cases. We will begin our review of those cases with Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed. 2d 225 (1971). In Reed, the Court ruled invalid a provision of the Idaho Probate Code that males must be preferred to females where persons of equal entitlement seek to administer an estate. We quote in pertinent part from the opinion of the Court:\nIn such situations, \u00a7 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.\nIn applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. [Citations omitted.] The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification \u201cmust be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.\u201d [Citation omitted.]\n404 U.S. at 75-76, 92 S.Ct. at 253-54, 30 L.Ed. 2d at 229. The Court concluded that no such legitimate objective was advanced by the disputed provisions of the Idaho Probate Code.\nIn Stanley v. Illinois, supra, the Court considered, in light of the fact that Illinois law allows married fathers whether divorced, widowed or separated, and mothers even if unwed, the benefit of the presumption that they are fit to raise their children, the validity of certain provisions of Illinois law which created a presumption that the father of an illegitimate child is unfit for parenthood. The Court concluded there was both a due process violation in that unwed fathers were denied a hearing on the question of fitness and an equal protection violation in that unwed fathers were treated differently from other parents whose custody of their children was challenged by the State.\nIn Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed. 2d 397 (1976), the Court considered the question of whether an Oklahoma statutory scheme prohibiting the sale of 3.2 percent beer to males under the age of twenty-one and females under the age of eighteen constituted a gender based discrimination that denied to males 18-20 years of age the equal protection of the laws. For a summary of pertinent decisions in point and for a restatement of the rule enunciated in Reed, supra, we quote in pertinent part from the Court\u2019s opinion:\nAnalysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are \u201csubject to scrutiny under the Equal Protection Clause.\u201d 404 US, at 75, 30 L Ed 2d 225, 92 S Ct 251. To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the objectives of \u201creducing the workload on probate courts,\u201d . . . and \u201cavoiding intrafamily controversy,\u201d . . . were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents\u2019 estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e.g., Stanley v. Illinois, 405 US 645, 656, 31 L Ed 2d 551, 92 S Ct 1208 (1972); Frontiero v. Richardson, 411 US 677, 690, 36 L Ed 2d 583, 93 S Ct 1764 (1973); cf. Schlesinger v. Ballard, 419 US 498, 506-507, 42 L Ed 2d 610, 95 S Ct 572 (1975). And only two Terms ago, Stanton v. Stanton, 421 US 7, 43 L Ed 2d 688, 95 S Ct 1373 (1975), expressly stating that Reed v. Reed was \u201ccontrolling,\u201d 421 US, at 13, 43 L Ed 2d 688, 95 S Ct 1373, held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute\u2019s coincidence with and furtherance of the State\u2019s purpose of fostering \u201cold notions\u201d of role typing and preparing boys for their expected performance in the economic and political worlds. 421 US, at 14-15, 43 L Ed 2d 688, 95 S Ct 1373.\nReed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, \u201carchaic and overbroad\u201d generalizations, Schlesinger v. Ballard, supra, at 508, 42 L Ed 2d 610, 95 S Ct 572, concerning the financial position of servicewomen, Frontiero v. Richardson, supra, at 689 n 23, 36 L Ed 2d 583, 93 S Ct 1764, and working women, Weinberger v. Wiesenfeld, 420 US 636, 643, 43 L Ed 2d 514, 95 S Ct 1225 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the \u201cmarketplace and world of ideas\u201d were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 US 522, 535 n 17, 42 L Ed 2d 690, 95 S Ct 692 (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See, e.g., Stanley v. Illinois, supra, at 658, 31 L Ed 2d 551, 92 S Ct 1208, cf. Cleveland Bd. of Ed. v. LaFleur, 414 US 632, 650, 39 L Ed 2d 52, 94 S Ct 791, 67 Ohio Ops 2d 126 (1974).\nIn this case, too, \u201cReed, we feel, is controlling . . . .\u201d Stanton v. Stanton, supra, at 13, 43 L Ed 2d 688, 95 S Ct 1373. We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.\n429 U.S. at 197-99, 97 S.Ct. at 457-58, 50 L.Ed. 2d at 407-408.\nIn more recent cases, the Court has restated the rules laid down in Craig and Reed. \u201cGender-based distinctions \u2018must serve important governmental objectives and must be substantially related to achievement of those objectives\u2019 in order to withstand judicial scrutiny under the Equal Protection Clause. [Citations omitted.]\u201d Caban v. Mohammed, 441 U.S. 380, 388, 99 S.Ct. 1760, 1766, 60 L.Ed. 2d 297, 304-305 (1979). \u201cClassifications based upon gender . . . have traditionally been the touchstone for pervasive and often subtle discrimination. [Citation omitted.] This Court\u2019s recent cases teach that such classifications must bear a close and substantial relationship to important governmental objectives [citation omitted] and are in many settings unconstitutional. [Citations omitted]\u201d Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed. 2d 870, 883-84 (1979). See also Kirchberg v. Feenstra, \u2014 U.S. \u2014 , 101 S.Ct. 1195, 67 L.Ed. 2d 428 (1981).\nPetitioners\u2019 argument that the statutory scheme for establishing the filial relationship between illegitimate children and their natural fathers serves a valid state interest and purpose cannot be questioned. The underlying validity of the statutory scheme cannot, however, serve to answer respondents\u2019 contentions that the requirement of change of surname causes this otherwise valid statutory purpose to operate in an invalid way. Petitioner has not met the burden of advancing an \u201cexceedingly persuasive justification\u201d; Kirchberg v. Feenstra, supra, for the name change requirement. Petitioners argue that because children born of married parents have recorded on their birth certificates the surname of the husband of their mother, the requirements of G.S. 49-10 and 49-13 promote consistency and administrative convenience. This argument is not persuasive justification. We see no convenience to the State in requiring the surname of the child to be changed to that of the father in proceedings pursuant to G.S. 49-10 and 49-13. Petitioners cite Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed. 2d 31 (1977); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed. 2d 503 (1978); Mitchell v. Freuler, 297 N.C. 206, 254 S.E. 2d 762 (1979); and Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), aff\u2019d 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed. 2d 246 (1972) in support of their \u201cadministrative convenience\u201d argument. Trimble must be distinguished. It dealt with the balancing of the rights to inherit as between illegitimate and legitimate children. Lalli and Mitchell fall into the same category. Forbush, however, must be further distinguished. In Forbush, the female plaintiff challenged the requirement of the Alabama Department of Public Safety that married females use their husband\u2019s surname in seeking and obtaining a driver\u2019s license. The Forbush Court recognized the inherent gender-based discrimination in such a requirement, but held that it served a substantial State interest: the State\u2019s need to maintain control over persons issued driver\u2019s licenses. Petitioners have not asserted, much less demonstrated, any comparable interest of the State of North Carolina in maintaining control over illegitimate children who may become the beneficiaries of proceedings under G.S. 49-10 and 49-13.\nWe hold that the valid purpose served by the provisions of G.S. 49-10 and 49-13 of establishing the filial relationship between illegitimate children and their fathers is not enhanced, advanced, or served in any useful or justifiable way by the additional requirement that the child\u2019s surname be changed to that of the father. Such a requirement does not bear a close and substantial relationship to the important governmental objective underlying the statutes disputed here. Such a requirement denies the mother of an illegitimate child the equal protection of the laws, and because it requires arbitrary action on the part of an agency of the State, it denies such mothers a protected liberty interest without due process of law.\nA proceeding under G.S. 49-10, while being entirely voluntary on the part of the putative father of the child born out of wedlock, nevertheless carries with it results affecting the putative father in two profound respects as provided by G.S. 49-11. It is apparent, therefore, that petitioner Eddie Jones, the putative father in this proceeding has such a property interest at stake as will afford him due process. Mitchell v. Freuler, supra. In the light of our opinion that the name change requirement of G.S. 49-13 is invalid, petitioner Jones must be afforded the choice of either continuing this action with the knowledge that Trenda Junae will continue to bear her mother\u2019s surname upon legitimation, or withdrawing his petition by voluntary dismissal. Accordingly, it is our opinion that the judgment of the trial court must be reversed in its entirety and that this matter must be remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges Hedrick and Clark concur.\n. Although respondents contend otherwise, the question of respondents\u2019 interest in choosing Trenda\u2019s name was not before the trial court and is not before us. Trenda\u2019s surname was established at birth under pertinent provisions of Chapter 130 of the General Statutes dealing with birth registration. Our opinion is confined to the narrow and specific question of respondents\u2019 interest in retaining Trenda\u2019s surname in the context of a legitimation proceeding under the applicable provisions of Chapter 49 of the General Statutes.\n. \u00a7 49-10. Legitimation. \u2014The putative father of any child born out of wedlock, whether such father resides in North Carolina or not, may apply by a verified written petition, filed in a special proceeding in the superior court of the county in which the putative father resides or in the superior court of the county in which the child resides, praying that such child be declared legitimate. The mother, if living, and the child shall be necessary parties to the proceeding, and the full names of the father, mother and the child shall be set out in the petition. A certified copy of a certificate of birth of the child shall be attached to the petition. If it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated; and the full names of the father, mother and the child shall be set out in the court order decreeing legitimation of the child. The clerk of the court shall record the order in the record of orders and decrees and it shall be cross-indexed under the name of the father as plaintiff or petitioner on the plaintiffs side of the cross-index, and under the name of the mother, and the child as defendants or respondents on the defendants\u2019 side of the cross-index.\n\u00a7 49-13. New birth certificate on legitimation. \u2014A certified copy of the order of legitimation when issued under the provisions of G.S. 49-10 shall be sent by the clerk of the superior court under his official seal to the State Registrar of Vital Statistics who shall then make the new birth certificate bearing the full name of the father, and change the surname of the child so that it will be the same as the surname of the father.\nWhen a child is legitimated under the provisions of G.S. 49-12, the State Registrar of Vital Statistics shall make a new birth certificate bearing the full name of the father upon presentation of a certified copy of the certificate of marriage of the father and mother and change the surname of the child so that it will be the same as the surname of the father.\n. \u00a7 49-11. Effects of legitimation. \u2014 The effect of legitimation under G.S. 49-10,shall be to impose upon the father and mother all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue, and to the same extent as if said child had been born in wedlock, and to entitle such child by succession, inheritance or distribution, to take real and personal property by, through, and from his or her father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "North Central Legal Assistance Program, by Charles A. Bentley, Jr., for petitioner-appellee.",
      "Attorney General Rufus L. Edmisten, by Associate Attorney Sarah C. Young, for third-party petitioners-appellees.",
      "Thompson & McAllaster, by Sharon A. Thompson^ for respondents-appellants."
    ],
    "corrections": "",
    "head_matter": "EDDIE JONES, Petitioner v. JULIE McDOWELL and TRENDA JUNAE McDOWELL, by and through her Guardian Ad Litem ERNESTINE McDOWELL, Respondents v. DR. SARAH MORROW, Secretary of Human Resources and DR. RONALD H. LEVINE, State Registrar of Vital Statistics, Third-party Petitioners\nNo. 8014SC1000\n(Filed 18 August 1981)\n1. Bastards \u00a7 13; Constitutional Law \u00a7 23\u2014 liberties protected by the Due Process Clause \u2014 retaining surname of illegitimate child\nThe mother of an illegitimate child has a Fourteenth Amendment due process interest in retaining the surname given her child at birth and the father, seeking to legitimize the child, the Secretary of Human Resources, and the State Registrar of Vital Statistics can be enjoined from changing the child\u2019s name to the father\u2019s by issuing a new birth certificate upon legitimation.\n2. Bastards \u00a7 13; Constitutional Law \u00a7\u00a7 20, 23\u2014 requiring surname of illegitimate child be changed to that of father \u2014 denies mother equal protection\nPetitioners failed to meet the burden of advancing an \u201cexceedingly persuasive justification\u201d in requiring the surname of an illegitimate child to be changed to that of the father in legitimation proceedings pursuant to G.S. 49-10 and 49-13, and such a requirement denies the mother of an illegitimate child the equal protection of the laws and a protected liberty interest without due process of law.\nAPPEAL by respondents from Jolly, Judge. Judgment entered 25 June 1980 in Superior Court, DURHAM County. Heard in the Court of Appeals 28 April 1981.\nPetitioner brought this special proceeding pursuant to G.S. 49-10 to legitimate the child Trenda Junae McDowell (Trenda), born out of wedlock on 19 May 1977 to respondent Julie McDowell with whom the child resides. The respondent, Julie McDowell, answered, admitting that Jones was the father of Trenda, seeking to join the Secretary of Human Resources and the Registrar of Vital Statistics as parties to the proceeding, seeking to enjoin these third-party petitioners from changing Trenda\u2019s surname to Jones by issuing a new birth certificate pursuant to G.S. 49-13, and alleging that the statutory scheme, G.S. 49-10 and 49-13, which would cause Trenda\u2019s surname to be changed to the surname of the father following legitimation, violates respondent\u2019s rights under the constitutions of North Carolina and the United States. The Secretary of Human Resources and the Registrar of Vital Statistics were joined as third-party petitioners and petitioners moved for summary judgment.\nIn granting petitioner\u2019s motion for summary judgment, the trial judge concluded as follows:\n1. Petitioner is the father of the minor child, Trenda Junae McDowell, and the child should be legitimated pursuant to N.C. Gen. Stat. \u00a7 49-10.\n2. North Carolina\u2019s statutory scheme for legitimation, N.C. Gen. Stat. \u00a7\u00a7 49-10 and 49-13, is constitutional and therefore the North Carolina Secretary of Human Resources and the Registrar of Vital Statistics of the State of North Carolina should not be enjoined from changing the surname of the minor child to the surname of the father.\n3. Respondents do not have a property interest in the name of the child.\n4. The changing of the surname of the child to the surname of the father does not deprive respondents of property without due process of law under the Constitutions of the United States and North Carolina.\n5. Any procedural and substantive due process rights of respondents and the minor child are protected under Gen. Stat. \u00a7\u00a7 49-10 and 49-13.\n6. Gen. Stat. \u00a7\u00a7 49-10 and 49-13 are not arbitrary or capricious.\n7. Gen. Stat. \u00a7\u00a7 49-10 and 49-13 do not violate the equal protection clauses of the Constitutions of the United States and North Carolina.\n8. Gen. Stat. \u00a7\u00a7 49-10 and 49-13 are not special legislation and do not violate the Constitution of North Carolina, Article II, \u00a7 24.\nRespondents have appealed.\nNorth Central Legal Assistance Program, by Charles A. Bentley, Jr., for petitioner-appellee.\nAttorney General Rufus L. Edmisten, by Associate Attorney Sarah C. Young, for third-party petitioners-appellees.\nThompson & McAllaster, by Sharon A. Thompson^ for respondents-appellants."
  },
  "file_name": "0434-01",
  "first_page_order": 462,
  "last_page_order": 471
}
