Co-parenting involves parents who are separated, divorced, or otherwise no longer in a relationship choosing to share the rights and responsibilities of a child. If parents were never married, co-parenting may be complicated, but is often in the best interests of the child. To effectively co-parent, it’s important for parents to know their rights and responsibilities regarding their child.
Establishing Parental Rights
While establishing parental rights for married parents is usually straightforward, establishing rights of unmarried parents is not as clear cut. For unmarried mothers in Virginia, there is a presumption at birth that the mother is the child’s parent. For unmarried fathers, there are no rights initially and the process can be more complicated. Before an unmarried father can claim any parental rights, he must establish paternity for the child. If the mother of the child agrees, the father can sign an Acknowledgement of Paternity (“AOP”) at the hospital.
This form must be completed and signed by both parties for the father’s name to appear on the child’s birth certificate. If the form is not completed at the hospital, it can be completed later and mailed in for a fee. If the AOP is completed, the individual is considered the legal father of the child.
If there is a dispute about who the father of the child is and the mother of the child will not agree to sign an AOP, the father can have a DNA test (“paternity test”) performed on himself and the child to determine whether or not he is the father of the child. This may require court action. The individual claiming paternity can file a Petition to Establish Paternity and request the court to order a DNA test. If the DNA test establishes paternity, the father can petition the court for child custody and visitation rights.
Child Custody and Visitation
In Virginia there are two types of child custody: legal custody and physical custody. Physical custody refers to where a child spends the majority of his or her time. Legal custody refers to the right to make important health, education, and welfare decisions for a child.
A parent may have sole custody of a child or share joint custody between both parents. With sole legal custody, one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Sole physical custody means one the child resides with the custodial parent. The non-custodial parent may have visitation rights. Joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child. Joint physical custody means both parents share physical custody of the child, although not necessarily share equally. In Virginia, joint custody is awarded more commonly.
Visitation is the time that a non-custodial parent is entitled to have with a child. Virginia law favors arrangements, both custody and visitation, that allow both parents to be involved in the lives of their children. Visitation may be supervised or not supervised. Supervised visitation is more likely if the non-custodial parent has placed the child in a dangerous situation other acted otherwise inappropriately.
Custody and visitation matters can be settled through negotiation or mediation between the parties. However, if the parents are unable to agree, they may petition the court to decide these issues.
Since Virginia law assumes the parent with primary custody is already supporting any children, the parent without primary custody is typically required to pay child support to the parent with primary custody. The Virginia Code sets out the guidelines used for determining child support obligations. The guidelines consider the number of children that need support and the parents’ combined monthly gross income, as well as custody arrangements.
- Sole Custody – if one parent has sole custody of all children, the child support owed is based on the proportion of each parent’s income to the combined income.
- Split Custody – if one child lives with one parent and the other child lives with the other parent, the support owed is the difference between the amounts owed by each parent as a noncustodial parent according to respective “sole custody” calculations.
- Shared Custody – if parents share custody of a child, the support owed is based on the percentage of days per year the child is with each parent.
Child support is typically paid until a child turns 18 or is legally emancipated. However, if a child is 18, is still in high school, is not self-supporting, and lives with the custodial parent, that parent can seek child support. Under these circumstances, child support will end when the child turns 19 or graduates high school, whichever comes first. Courts may also extend child support payments after a child turns 18, if the child is severely and permanently mentally or physically disabled, is unable to live independently, and resides with the custodial parent.
Custody and visitation matters can be complex, particularly for unmarried fathers who are likely to face challenges in obtaining custody and visitation rights. Our family law attorneys are experienced in establishing paternity and are well versed in custody and visitation matters and can help you navigate the process and protect your rights. Call us today at 703-991-7973 and see how we can help you.