While establishing parental rights for married parents is usually straightforward, establishing rights of unmarried parents is not as clear cut. If you’re an unmarried parent in Virginia and are interested in establishing your child custody, visitation, or support rights, you should consult with an experienced family law attorney who can help you protect your rights.

Establishing Parentage in Virginia

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.

Additionally, an unmarried father can sign up on the Virginia Putative Father Registry. Signing up on the Registry will allow the individual to be notified if there are adoption or termination of parental rights proceedings initiated for the child.

Child Custody

In Virginia, once paternity is established, there is no presumption in favor of one parent over the other regarding custody and visitation matters. Virginia has 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 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 necessary share equally.

Visitation Rights

Visitation is the time that a non-custodial parent is entitled to have with a child. Virginia law favors visitation arrangements that allow both parents to be involved in their children’s lives. 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 or acted otherwise inappropriately.

Factors Considered

When making custody or visitation decisions, courts will determine what is in the best interests of the child. The Virginia Code lists multiple factors for courts to consider when deciding what is in the best interests of the child, including:

• The age and physical and mental condition of the child;
• The age and physical and mental condition of each parent;
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
• The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
• The role that each parent has played and will play in the future, in the upbringing and care of the child;
• The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
• Any history of abuse or an act of violence, force, or threat in the previous 10 years.

While in Virginia, there is no presumption in favor of the mother when determining custody or visitation, the court will consider the current custody circumstances and who is the primary caretaker when making a permanent decision. Depending on when during the child’s life the father established paternity, this could favor a mother that has had sole custody of the child. If the child’s mother has been the sole caretaker for many years, the father would likely need to establish that the mother is a bad parent to earn custody rights. However, if paternity is established within the first few years of a child’s life, a father has a better chance of obtaining shared custody or liberal visitation.

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.