Unmarried fathers, says the Centers for Disease Control (CDC)1, accounted for 36 percent of first births for fathers in the 2000s. Various Virginia institutions, traditionalists and social circles can frown and fret all they want, but practical agencies that deal with the day-to-day realities of life in 21st century Virginia accept unmarried fathers as inhabiting roughly one-third of the landscape. Unmarried fathers in Virginia have plenty of legal rights.
The U.S. Constitution & Landmark Fathers’ Rights Cases
Perhaps in these days of upset political norms some folks outside of legal circles forget, but the structure and tradition of American law is actually pretty darn simple. The highest law of the land, unassailably, is the United States Constitution.
Say what you will about the Articles of Confederation, they were no match for the aggressive tug of states’ rights, which led us to frame our current document. Virginia, like all other U.S. territories, Commonwealths, dominions and states, fell into line under the aegis of the Constitution and, despite the occasional test every now and then (we are reminded of a little kerfuffle in the 1860s, for example), we all still revere it as the supreme law of the land.
So when the Supreme Court says that the “existence of a biological link between a child and an unmarried father gives the father the opportunity to establish a substantial relationship, which it defined as the father’s commitment to the responsibilities of parenthood, as demonstrated by being involved or attempting to be involved in the child’s upbringing,” that is not just tap-room chatter. The quotation is from the U.S. Department of Health and Human Services (HHS), and comes from a publication aptly titled, “The Rights of Unmarried Fathers.”
If you are in a tavern and need to be the proverbial tap-room lawyer, throw these cases around:
- Stanley v. Illinois, 405 U.S. 645 (1972), in which the U.S. Supreme Court granted equal protection (within the 14th Amendment) under the U.S. Constitution to an unmarried father. And toss Due Process into the mix, too, since the unmarried father lost his parental rights without a hearing.
- Caban v. Mohammed, 441 U.S. 380 (1979), in which New York State had to stop treating fathers as second-class citizens by discriminating against them in adoption cases (again, Equal Protection, 14th Amendment)
Virginia bows to federal law and upholds the rights of Virginia’s unmarried fathers in child custody, parentage, visitation and child support.
Legally Dad: Establishment of Paternity
Virginia Code lays out how you prove you are a child’s father, under § 20-49.1, which says genetic tests, proof of legal adoption, or a “voluntary written statement of the father and mother made under oath acknowledging paternity and confirming that prior to signing the acknowledgment, the parties were provided with a written and oral description of the rights and responsibilities of acknowledging paternity and the consequences arising from a signed acknowledgment, including the right to rescind.”
This step is important, because all else you do as an unmarried father depends on you being recognized as the father.
Child Support, Financial & Emotional
Under Virginia Code § 20-49.5 “Support of children of unwed parents by the father,” you can declare to the Department of Social Services that you are the child’s father, which entitles you to recognition by the court and state agencies that you, unmarried or not, are the father.
You can and should provide financial and emotional support to your child. You need to provide an unassailable track record of being involved in your child’s life, providing basic needs, and helping to raise your child. With that established, you are entitled to petition a court for custody of, or visitation with, your child.
Custody and Visitation Rights for Unmarried Fathers
The preferred way an unmarried couple living apart can reach agreement on custody and visitation is with a parenting plan, drawn up by attorneys representing both the Virginia mother and Virginia father.
If you and the mother of your children cannot determine a custody and visitation arrangement, you can make a claim for child custody in just the same way a married but divorced father would.
Your rights are equal to, not above or below, those of married but divorced Virginia fathers; you have to work just as hard as they do to gain custody, demonstrating to the court that you are a fit parent and a suitable parent. For visitation, you have to follow the same requirements, laid out under Code of Virginia § 20-124.2, as any other father.
Though Virginia does not place any special burden on an unmarried father, it does not make any automatic concessions, either. You will have to work to preserve the bond you have with your children as their unmarried father. You will need the services of a strong custody and visitation lawyer to argue your case.
With a telephone call to 757-383-9184, you can connect with The Firm For Men. We fight to protect the legal rights of Virginia’s men, whether they are married, divorced, or unmarried. We encourage you to do your own research, but when you need to have real legal representation in court, rely on the expertise and experience of our attorneys for men.
[1] https://www.cdc.gov/nchs/data/databriefs/db204.htm
