Susie and Paul Sensmeier, of Christiansburg, Virginia, know a lot about deliveries. Not babies, but drone deliveries. They’ve set a record for the most orders — more than 1,200 — delivered by remotely piloted aircraft. Most Virginia couples (married and unmarried) get excited about baby deliveries. But when an unmarried couple splits, how does child custody work?

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Unmarried Mothers and Custody Rights in Virginia

What “Prima Facie” Means for New Mothers

A Virginia Mom who delivers a baby is presumed by law to be the child’s mother. This is prima facie evidence, literally “at first view.” Need we explain how that works?

Sole vs. Joint Physical Custody for Mothers

That means, legally, the Mom is entitled from Day One to physical custody of the child, no matter who the father is. The question becomes one of degree:

  • Will Mom have sole physical custody, or

  • Will Mom and Dad have joint custody

Married couples need not jump through hoops to determine paternity of the new child. As soon as Married Dad puts his name on the birth certificate, he’s the Daddy.

Establishing Paternity for Unmarried Fathers

What Virginia Code § 64.2-103 Means for You

For unmarried couples living together for 10 months or longer before a birth, Virginia law (§ 64.2-103) recognizes the live-in man as the father.

Other means of demonstrating paternity include:

  • Giving consent to a physician charged with the responsibility of securing information for the preparation of a birth record that your name be used as the father of the child

  • Allowing the common use of your surname by the child

  • Claiming the child as your child on any statement, tax return, or other document filed and signed by you with any local, state, or federal government or agency

  • Admitting before any court having jurisdiction to determine your paternity that you are the father of the child

  • Voluntarily admitting paternity in writing under oath

  • Results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence

  • Other medical, scientific, or anthropological evidence relating to the parentage of the child based on tests performed by experts

  • A judgment establishing your paternity made by a court having jurisdiction to determine your paternity

Financial Responsibilities After Paternity is Proven

Once your paternity is established by law, you have both responsibilities and benefits of being a Dad:

  • You have to pay child support

  • You may need to reimburse Mom for medical expenses associated with the pregnancy and delivery (if you haven’t already)

Gaining Custody Rights Under Virginia Code § 20-124.2

Along with the financial responsibilities, you have the same rights to custody as Mom has, married or not, as spelled out in Code of Virginia § 20-124.2:

As between the parents, there shall be no presumption or inference of law in favor of either.

Understanding the “Best Interests of the Child” Standard

How Virginia Courts Evaluate Child Custody Cases

That heading is not a typo and we did not mean to write a naughty word. BIOTC stands for “Best Interest of the Child,” a concept so pervasive in Virginia law that it seeps up out of the Code of Virginia in more than two dozen places, including good ol’ § 20-124.2.

Unmarried couples face the same hurdles to custody that married couples do: they have to put their egos in check and do what is right and best for their children.

Types of Custody: Physical vs. Legal

Sole, Joint, and Shared Physical Custody Explained

That means determining the two types of custody:

  1. Physical custody — where will your child live for most of the time?

  2. Legal custody — which parent will make decisions regarding educational, spiritual, and medical issues?

Physical custody can have many forms:

  • Sole custody — One parent has the children most of the time, with the other parent visiting

  • Joint custody — Both parents share the children, with one having them more of the time

  • Shared custody — Both parents have the kids as close to 50 percent of the time as possible

If you father children by more than one mother, you may also have to deal with split custody, but that is an area best discussed with an experienced family law attorney.

Generally, though not always, the parent who has the main physical custodial duties will have legal custody. If you wish to have joint or shared physical custody, most couples will assign legal custody to one parent for speed and convenience.

Emergency Situations and Decision-Making Conflicts

It is possible to share legal custody, but most attorneys will point out the impracticality of that:

  • In a medical emergency, both parents must give consent

  • Conflicts over religious upbringing can lead to worsening relationships

  • Every visit to your child’s school can become a legal headache

Parenting Time, Child Support & Court Decisions

No Marriage Certificate? The Law Still Applies

Ironing out custody issues, child support, and parenting time for unmarried couples is no different than for married couples, once paternity is legally established.

Your relationship with the children’s mother could have been just about anything:

  • A one-night stand

  • A free-loving summer

  • A decade of love and caring but without “all that paperwork”

Morality Doesn’t Matter — Stability Does

The court will not judge you on the morality of your way of living; it merely wants to ensure you provide a good, stable home for your children.

If the children’s mother is challenged by life (addiction, crime, depression, job struggles), you could get sole physical custody. If you two still have a good relationship but are headed down separate paths, you could share custody and one of you could take full legal custody.

Why Consulting a Family Law Attorney Matters

With Virginia child custody, the best way to determine a way forward that provides stability and security to your kids is by consulting a family law attorney.

Contact us today at The Firm For Men, or telephone our Virginia Beach offices at (757) 383-9184. We represent Virginia’s men in every aspect of family law, from separation to divorce, from child support to child custody.