This article is not about money. We know, child support means money, but the root of this issue is paternity, not money. If you are paying child support for children who are not yours, you have a paternity problem that has created a money problem. Here is what you can do about both.
Asserting Your Rights
Without appearing to be indelicate, you may have very good reasons (based on some very good times) to assume you are the father of a Virginia woman’s children. If you have accepted a woman’s claim that you are, in fact, the father of her children and you are already paying child support, you have voluntarily accepted that role. However, you still can challenge that role if a court has not already ruled on your paternity.
You need to assert your rights. That means reviewing what you have done and not done in regard to the children:
- Did you sign your name to one or more birth certificates?
- Have you signed an Acknowledgement of Paternity (AOP) for one or more children?
- Are you legally married to the woman who is the children’s mother?
Under Virginia law § 20-49.1, you can either voluntarily claim to be a child’s father by signing the birth certificate or the AOP, or you can take a genetic test.
The genetic test can operate in two ways:
- It can establish paternity
- It can disestablish (rule out) paternity
If you have not signed a birth certificate, have not signed an AOP, and have not taken a genetic test, a good family law attorney can help you to end payments for child support. Your past actions were taken in a good-faith effort to take responsibility for children you thought were you own. That action can end if a court has not yet ruled either way on your paternity.
The fastest, most convincing way to prove that you are not the father of a Virginia woman’s children is to take a paternity test using DNA from you that can be compared with DNA from the children.
DNA and genetic testing can be done either with a cheek swab, in which cells are taken from the inside of your cheek, or through a blood test. The results of tests affirmed to be 98 percent accurate are legally enforceable under Code of Virginia § 20-49.1.
Challenging Child Support
Once the genetic tests prove you are not the father, your family law attorney will press the court on Code of Virginia § 20-49.10, aptly titled “Relief from legal determination of paternity.” The motion by your attorney will ask the court to do all this:
- Remove your name from the birth certificate
- Issue a new birth certificate
- Vacate any previous order for child support
- Order any other “appropriate relief”
Unfortunately, any order to vacate child support is not retroactive. You cannot get back what you have already paid out.
Suddenly discovering you are not the father of children you have been supporting will definitely make you a lonely, lonely man. You need to get your head together and find a good ally: a family law attorney accustomed to dealing with child support and paternity problems.
We have already seen that the issue is complicated:
- You have a history of paying for these children;
- You learn they are not yours;
- You feel you have been defrauded (hint, you may have been);
- You need to disestablish paternity;
- You need to stop paying child support
Going it alone, you may feel the first three points make the last two virtually impossible. Not so! A good family law attorney experienced in paternity issues can petition the court to apply Code of Virginia § 20-49.1, which allows a Virginia man to rescind his statement of paternity if he was the victim of “fraud, duress or a material mistake of fact.”
However the mother convinced you of your paternity, if she deliberately lied to, defrauded, or intimidated you, she broke that law. Your attorney can get you the relief you deserve.
We do not overlook the issue of those past child support payments. You may have to accept that you paid them and will never get the money back.
Philosophically, you may find that changing the way you think about them helps. You invested in the future of Virginia by providing a good start for those children.
For challenging issues like paternity and child support, contact us at The Firm For Men. You may also call our office at (757) 383-9184. We stand ready to help Virginia’s men with every aspect of family law.