When a child is born to an unwed mother, the father has no legal rights initially. Without being married to the child’s mother, there is no automatic presumption under the law as to who the father is. For unmarried fathers to establish parentage, the father must voluntarily declare his paternity in writing, and if it is disputed, prove he is the father through a DNA test.
Voluntary Acknowledgement of Paternity
If there is no dispute between an unmarried couple that they are both parents of a child that is being born, the easiest way for the unmarried father to establish parentage is to fill out a Voluntary Acknowledgement of Paternity (AOP) at the hospital at the time of the child’s birth. There is no cost to execute an AOP form at the hospital, and it does not impact any government benefits that either parent may be receiving. By executing and an AOP form at the time the child is born, the father’s name can be added to the birth certificate right away.
If you did not execute an AOP form at the hospital or birthing center, the form can be filed later with the Virginia Office of Vital Records for a small fee. Once the AOP form is properly filed, you become the legal father of the child, and your name is added to the child’s birth certificate.
Involuntary Establishment of Paternity
If there is any dispute about who the father of the child is, establishing paternity may require a court action. A Petition to Establish Paternity can be filed with the appropriate court by the mother, father, child, or the state of Virginia (if the child is receiving public assistance). For example, if the petitioner claims to be the father and the mother denies this, the petitioner can request that the court orders DNA testing.
DNA samples are taken from the mother, alleged father, and child and taken to a laboratory for analysis. This can establish with nearly 100% certainty whether or not the man being tested is the father of the child. If paternity is successfully established, the father may be required to pay child support, but he may also petition the court for child custody and visitation rights.
Child Custody and Visitation for Unwed Parents in Virginia
In many states, when there are unmarried parents, the default position of the court is to give custody to the mother unless the father takes action to gain custody. In Virginia, once paternity is established, the courts do not favor one parent over the other. Instead, they look at the best interest of the child.
That said, the court does give a lot of weight to the current situation, and who the primary caretaker of the child is now in determining who should have custody. So, assuming the mother is currently the caretaker of the child and has been for a while, the father would have to prove that she is not a good parent in order to take custody away from her.
If you have established paternity early on in the child’s life (e.g., within the first few years) it may be possible to obtain shared custody or at the very least, liberal visitation rights. Shared custody refers to physical custody of the child, and this is a co-parenting arrangement where both parents have the child for at least 91 days of the year.
There is also the matter of legal custody. This refers to which parent has the right to make important decisions on behalf of the child; such as in the areas of healthcare, education, religious upbringing, and extracurricular activities. Parents may have joint legal custody, in which they must confer with each other on these important decisions, even if one parent has sole physical custody.
Maybe you’re not in a situation where the co-parenting relationship is tense or unfriendly. Perhaps you and your co-parent actually get along quite well, and you see no reason to stir things up. If this is the situation you are in, you are both at each other’s mercy.
Your co-parenting relationship will work fine until one of you pushes the boundaries too far, and at that point, everything is up in the air. If paternity is established and there is no set custody schedule, both parents have rights to the child. That means that if your co-parent takes your child out for the day and simply doesn’t return, there is nothing you can do right away. It’s not considered kidnapping because there’s no custody order preventing them from doing that.
Along the same lines, it’s all too easy to weaponize your role as a parent in this type of informal setup. If one parent starts dating someone that the other parent doesn’t like, the other parent can use this to withhold the child or adjust the informal schedule to their benefit. Without going to court and getting a proper custody schedule, this is completely legal.
You can still have a positive co-parenting relationship if you ask for a court-ordered custody schedule. In fact, if you work on it together without animosity, you know that your co-parenting relationship is genuinely strong. If your co-parent starts making threats because you want to legitimize your custody arrangement, then it’s even more important for you to protect your rights.
Speak with an Experienced Family Law Attorney
Unwed parents, especially fathers, face some challenges when they want to be involved in the lives of their children. Establishing paternity can be a complicated process, especially if it is disputed. And once paternity is established, you will often need to go to court to petition for custody or visitation rights.
At Olmstead & Olmstead, we understand the frustrations unmarried parents often face when they are trying to do what’s best for their children. We work closely with our clients, putting our experience to work to help them develop the most practical, effective, and cost-efficient legal solutions. Call us today at 703-361-1555 to schedule a consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.