Are you a glass-half-full or a glass-half-empty person? We ask because everyone has heard that old chestnut, “Half of all marriages end in divorce.” Well, that also means half don’t end in divorce. We are not half-full/half-empty people, though. We look at where that pitcher of our favorite beverage is, so we can top off the glass. People have other options besides marriage or divorce. Married or not, you can still have kids in Virginia. But who gets custody of them if you and their mother go your separate ways?
Yes, Dads Have Rights
Since children are not born with Real IDs, Social Security numbers, tattooed barcodes or other claptrap of our information-obsessed society, kids are naturally and legally assumed to be the offspring of Mom and Dad. Outside of marriage, Dad will need to establish paternity, but once that step is done, Dad has custody of his children.
A Virginia Dad seldom (if ever) has to prove the child throwing a tantrum on the grocery store floor is his. Everyone wants the adorable, mewling kid to be yours, Dad; take him away. Please.
Similarly, you as a Virginia Dad are presumed to not only have custody over your children, you also are responsible for their safety, feeding, clothing, housing, summer camp, music lessons, education, religious upbringing, medical needs, dentistry, haircuts, Saturday morning Mickey Mouse pancakes … need we go on?
The point is, Virginia does not want to take your kid away from you unless you give Virginia (the state, not the woman) good cause. Whether you and the mother ever married, once you establish paternity, you’re it! You. Have. Custody.
Moms Have Rights
Before you Virginia men start celebrating, remember that Virginia Moms have rights, too. They birthed their children, which fact is formally recognized in Virginia Code § 20-49.1:
- The parent and child relationship between a child and a woman may be established prima facie by proof of her having given birth to the child, or as otherwise provided in this chapter.
Given that she brought the child into the world, the baby’s Mom has immediate legal custody. She need not sign a declaration of maternity, but otherwise, the same conditions that applied to the Virginia man (custody and responsibility) apply to the Virginia woman.
Who’s Your Daddy?
Dad and Mom have equal rights to their children’s custody. They share physical and legal custody to their children. Their children.
If a Virginia man (unmarried or married) has doubts about his role in the arrival of Jocular Jenn, he needs to reach out to a family law attorney immediately.
With custody comes full financial responsibility for the child, and no man wants to unintentionally pay for a child who is not his own. If Mom and Dad have a looser relationship, or if Dad is feeling particularly charitable, that’s fine. It’s when Dad is unwittingly paying for a child that is not his that paternity and custody become major problems.
Establishing Paternity
Remember that we said, to have custody, an unmarried Virginia father must establish paternity. Virginia has several avenues to establishing or disestablishing paternity. Before you claim custody over a child in a relationship outside of marriage, talk to a family law attorney. Before you and your attorney sit down for you to sign an Acknowledgement of Paternity (AOP), make absolutely certain you should.
If you did not sign an AOP, the Virginia Department of Social Services says you can establish paternity in three ways:
- You can take a DNA test through the Division of Child Support Enforcement (DCSE).
- You can open a child support case through DCSE. To do that, either parent can request application information online or call 1-800-468-8894.
- You can file a petition at the Juvenile and Domestic Relations District Court in your area. Each city and county in Virginia has a Juvenile and Domestic Relations District Court.
Once you do that, or sign the AOP, you have established paternity and gained custody. You have a legal defense if you and the children’s mother go your separate ways. She cannot legally prevent you from seeing your children, from taking them places in Virginia, and from spending your money on their needs and wishes.
Call The Family Law Attorneys for Dads
While nobody wants to see a Virginia child neglected or unloved, we also understand that a Virginia man may not want to take custody of a child he doubts is his. If you and the children’s mother are unmarried, consult with a family law attorney before you take on a custody issue.
The Firm For Men protects Virginia men’s rights, safeguards Virginia’s children, and works for equity in justice. Contact us online or telephone our offices at (757) 383-9184 today. We can help sort out custody, paternity, child support and more.
