When there is a dispute over the custody of a child in a Virginia court, that court is going to primarily look to the two biological parents of the child in determining who should have custody. It is possible for other people such as grandparents, aunts, or uncles to win custody of a child, but that will generally only occur where both biological parents are found to be unfit and/or unavailable. When a child is born during a marriage, the law will presume that the two spouses in the marriage are the parents of the child. What this means for a father who was not married to the mother at the time of the birth is that paternity will likely have to be established before the court will consider giving custody to the father or granting visitation privileges.
Establishing Paternity Through an AOP
If both parents are willing to acknowledge that the father is indeed the father of the child, then paternity can be established through both parents signing an Acknowledgment of Paternity (AOP). This can be signed at the hospital after a birth, but, if that is not done, then the parents can sign an AOP at a local child support services center.
Establishing Paternity In a Court Action
If the parents cannot jointly sign an AOP for any reason (e.g. the mother publicly disputes that the father is the father), then paternity will have to be established through a court order. This might involve the father taking a genetic test to show a match with the child which will then be submitted to the court. Virginia courts will presume that a test showing a 98% chance of paternity or higher is sufficient for proving paternity.
After Paternity is Established
Simply establishing paternity, however, does not grant the father custody or visitation rights, although it is a necessary first step to even begin seeking custody or visitation. Custody arrangements are determined by a court based on the best interests of the child, which will involve the court looking at a number of factors related to both parents and their relationship to the child, such as ability and willingness to care and provide for the child, histories of drug use and domestic violence, and the presence of other individuals in a parent’s household. But even where a father is not awarded sole or joint legal or physical custody of a child, he may be able to obtain visitation rights with the child on account of his having proved his paternity of that child.
Keep in mind, however, that where a man’s paternity of a child is established, he will in most cases be liable for paying child support for the child until the child reaches the age of 18 or older.
Get Legal Guidance on Your Custody Issues
Fathers seeking the all-important right of custody should not try and go it alone in arguing in front of a judge on complex Virginia family law issues. At Kurylo Gold & Josey, PLC in Fredericksburg, we will guide through all of your questions regarding child custody, and help you work towards a favorable outcome in your custody matter. To schedule a consultation with one of our Virginia family law attorneys, contact Kurylo Gold & Josey, PLC at 540.642.1766.