Unmarried Mothers
Virginia law presumes that the unmarried mother is the child’s parent. This means that from birth, unwed mothers have sole custody of the child.
Unmarried Fathers
Unlike the child’s mother, unmarried fathers start with no parental rights unless they are named on the birth certificate. Obtaining those rights can begin with taking a DNA paternity test to prove he is the father.
What is paternity?
Paternity is the recognition of a legal parent-child relationship where a biological relationship exists. In most instances, paternity is established at the time a child is born and is confirmed on the child’s birth certificate. However, there are certain situations in which paternity will need to be established later on in the child’s life and requires the use of the court system.
What does establishing paternity do?
Being a parent to a child comes with legal responsibility—even if you have little to no relationship with an offspring. As a biological parent, you are obligated to pay child support until the child is 18 years of age (or longer depending on the circumstances). You may also be granted the right to contact the child and develop a relationship with that child. In addition, certain paternal obligations can be retroactive to the time the child was born. This means that if paternity is established, the father can be held accountable for reimbursing the mother for pregnancy and other expenses.
Why would someone want to establish paternity?
A child or maternal parent may want to establish paternity for the following reasons:
- Receive child support
- Gain rights to inheritance
- Receive benefits upon the death of a parent (such as social security)
- Learn about family history
How do you establish paternity?
In order to establish paternity, the father, the child or the mother of the child must file a petition with the appropriate court. The other party must then consent to or deny the establishment of paternity.
If the father is seeking paternity, and if the mother agrees, the mother and father can sign an Acknowledgement of Paternity (AOP) form under oath, either at the hospital or at a later date. Once this form is completed, the individual is then legally considered the child’s father.
However, if there is confusion or disagreement over who the father is, or if the mother does not agree to sign the AOP, the individual claiming to be the father has two options: He can initiate a child-support case with the Virginia Department of Social Services’ Division of Child Support Enforcement; or he can file a Petition to Establish Paternity at his local Juvenile and Domestic Relations District Court. Both options require the “father” to take a DNA test. If the DNA test proves his paternity, the father can petition for child custody and visitation.
An unmarried father can also voluntarily register with the Virginia Birth Father Registry (formerly the Virginia Putative Father Registry) within 10 days after a child’s birth, enabling him to be notified if any adoption, foster care, or parental rights proceedings are initiated regarding his child. Registration, however, does not establish paternity, nor does it start a legal process for doing so.
Custody Once Paternity Is Established
Everything changes once paternity is established. At that point, both parents would have equal custody rights, and if either parent wishes to change that, they will need to go through the court asking for custody and/or visitation.
There are two types of custody in Virginia.
- The first is legal custody, which involves the right to decide on schooling, religion, extracurricular activities, health, welfare and other major matters.
- The second is physical custody. This one simply refers to where the child will live and spend most of their time.
The court can determine whether the parents will have joint custody, or if one will have sole custody and what the other parent’s visitation rights will be. The court will consider a variety of factors in determining custody, but will base its decision on what is in the best interest of the child.
The court does not necessarily favor the mother or father in custody cases, but will take into account what the current circumstances are and what is in the best interest of the child. There are many variations of custodial arrangements.
Consult a Virginia Family Law Attorney
If you or someone you know is an unmarried parent and needs to know more about child custody, please contact Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
