Can I Get Custody If I’m Not on the Birth Certificate?

  • can I get custody if I'm not on the birth certificate?

Can I Get Custody If I’m Not on the Birth Certificate?

Some pieces of paper are unimportant: a losing lottery ticket; a completed grocery list; an expired gift certificate. Some incidental pieces of paper are extremely valuable: a contract signed by Jimi Hendrix sold for $45,9601 a few years back. Some important pieces of paper are priceless: the Magna Carta; the Constitution; a Virginia birth certificate. With the first two, you can start a government. With the third, you can start a family. What do you do, though, if you are not on the Virginia birth certificate of a child for whom you want custody?

Virginia Birth Certificate

The flimsy piece of paper is a legal document that specifies the parentage of a live birth in Virginia. Issued by the Virginia Department of Health’s Division of Vital Records, the birth certificate makes the legal assumption that the mother is the person who gave birth to the child (under Code of Virginia § 20-49.1). Determination of paternity comes from Dad’s voluntary admission by allowing his name on the birth certificate, an Acknowledgement of Paternity (AOP) signed by both parents, or by DNA or genetic blood tests, all under the auspices of Virginia Code § 64.2-103.

That little slip of paper entitles the father to legal rights over the child. It also entitles your child to legal benefits from you, like being named a beneficiary to your insurance, inheritance, or veterans’ benefits, to name just a few. You could have many compelling reasons to seek custody of a child for whom you are not legally recognized as Dad.

Establishing Paternity

If you are not on the child’s birth certificate (for whatever reason) and you want custody, the most direct way to earn custody is to get recognition as the child’s father. You can do this in several ways, all following Virginia Code § 64.2-103:

  • Get the mother to agree to sign an AOP with you identified as the father; you both need a form of photographic identification and must get the form signed under oath
  • Allow the child to use your surname (the mother can use any last name she wishes for her child on the birth certificate at the time of delivery; it does not have to be your name, but the birth certificate can be amended)
  • Pay for genetic testing to prove your paternity
  • Admit under oath in a Virginia court that you are the child’s father
  • Claim the child on state and federal tax returns

Terminating Parental Rights

Custody falls naturally from establishment of paternity. If the child’s mother voluntarily provided another man’s name on the birth certificate, the state officially recognizes him as the father.

Getting the other man to terminate parental rights is a huge step toward gaining custody for yourself, and involves §20-49.10 (Relief from legal determination of paternity) and §16.1-283 (Termination of residual parental rights). For either of these avenues to work, you need an experienced family law attorney.

Because Virginia strives to look out for its most helpless and innocent citizens, the law provides that termination of parental rights should be simultaneous to granting of custody to, among others, “a relative or other interested individual.” In other words, at no point is the child without a “father,” however the court construes the term.

In the same spirit of the best interests of the child, the court will readily grant custody to you as an “interested individual” if the child’s alleged father (as identified on the birth certificate) voluntarily terminates his parental rights, even if the court does not name you as the child’s father.

Work Together for a Custody Arrangement

In some cases, you may be able to work out an equitable arrangement with the child’s mother if the child’s true father is not in the picture. Custody is automatically granted to the mother, but if she wants to legally work out shared or joint custody with you, she can; that is her prerogative. Having her as your ally is far better than trying to fight against her for custody.

The only snag to this is the possibility that the child’s genetic father could re-enter the scene and disrupt your arrangement if he has not terminated his parental rights.

He could do this because he truly loves the child, or he could do this to attempt to get something from you and the child’s mother. The court will not look favorably on his claim, however, if you have established a history of financial and emotional support for the child and can show a strong bond. Virginia family courts work hard to preserve strong relationships.

Why A Custody Lawyer for Dads Helps

Nearly every step in gaining custody of a Virginia child involves legal snares. You face decisions, impenetrably confusing laws, and possible opposition by the mother or the child’s genetic father. You need a strong family law attorney on your side. By calling The Firm For Men at 757-383-9184, or by contacting our offices online, you can speak with a child custody attorney to have all your custody questions answered. We have been faithfully serving men in Newport News, Suffolk, Virginia Beach and the surrounding communities for more than ten years.

1. http://ultimateclassicrock.com/jimi-hendrix-signed-contract-sells-for-over-45000/

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