concurring.
I agree with the majority that Johnson v. Johnson, 343 N.C. 114, 468 S.E.2d 59 (1996) (per curiam) does not hold a putative father is precluded from “challenging the presumption of legitimacy which attaches when a child is born during a marriage union,” but write separately to address the statutory basis for allowing the putative father to challenge this presumption. Our statutes specifically provide that “[t]he putative father of a child born to a mother who is married to another man may file a special proceeding to legitimate the child,” N.C.G.S. § 49-12.1(a) (1999), and the marital “presumption of legitimacy can be overcome by clear and convincing evidence,” N.C.G.S. § 49-12.1(b) (1999). Furthermore, actions to establish paternity may be brought by “[t]he mother, the father, the child, or the personal representative of the mother or the child.” N.C.G.S. § 49-16(1) (1999). Thus, our statutes authorize actions by putative fathers where a child is bom during wedlock to a mother married to another man.
Johnson addressed only the right of a party to compel a person to submit to a blood test and it held the putative father of a child has no standing to compel the husband of the mother of the .child born during wedlock to submit to a blood test. Johnson, 343 N.C. at 115, 468 S.E.2d at 60. The statute relied on by Johnson, N.C. Gen. Stat. § 8-50.1(b), has been repealed by our legislature and replaced by N.C. Gen. Stat. § 8-50. l(bl). This new statute grants standing to any “party” in a civil action to establish parentage to compel “the mother, the child, and the alleged father-defendant” to submit to “one or more blood or genetic marker tests.” N.C.G.S. § 8-50.1(bl) (1999). Section 8-50.1(bl) does not appear to authorize an order compelling the husband of a mother of a child born during wedlock to submit to a blood or genetic marker test, unless he is a defendant in a parentage case who is alleged to be the father of the child.3
Thus, in this case, the trial court erred in holding Johnson precluded plaintiff from bringing his action to establish paternity and *372seek custody of the minor child. Accordingly, I agree with the majority that the order.of the trial court must be reversed and this case remanded to the trial court to resolve a visitation schedule for the parties involved.
. If there is no authority to order a husband to submit to a blood or genetic marker test under section 8-50.1(bl), there appears to be authority under Rule 36 of the North Carolina Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 35(a) (1999) (when the “blood group” of “a party” is in controversy, a trial court “may order the party to submit” to the test). Rule 35 applies without regard to whether the husband is alleged to be the father of the child, as long as he is a party to the parentage action. See id.