In order for custody, child support, or visitation to be ordered by a Court, paternity needs to be established.
How does Virginia law establish paternity? In this post, we will talk about the different means of establishing paternity according to the laws of the Commonwealth.
Establishing Paternity
Importantly, just because a man is the child’s biological father does not necessarily mean that he is the child’s legal father.
The legal father is required to provide support for the child and may pass on government benefits, health benefits, and other inherited benefits or assets. In other words, the legal father has the rights and responsibilities of fatherhood.
The ways in which paternity can be determined by Virginia law
Marriage.
Being married to the child’s mother at least 10 months before she gives birth to the child grants the assumption of paternity to the husband.
DNA Testing.
The Court will accept reliable paternity tests that show a 98 percent or greater chance of paternity.
Lawful adoption.
Legal proof of adoption must be presented.
Voluntary acknowledgment of paternity.
In order to establish paternity under Virginia law, the mother and prospective father must sign a legal document, under oath, acknowledging paternity.
The Process for Establishing Paternity in Virginia
Prior to signing the legal document, the parties are provided a written and oral description of the rights and responsibilities of acknowledging paternity and the consequences of signing the acknowledgement of paternity. The father will have the opportunity to rescind his acknowledgement of fatherhood within 60 days of signing by filing a petition to vacate with the court.
Other evidence of paternity considered by a court may include evidence of open cohabitation with the mother at the probable time of conception; evidence the alleged parent consented to or acknowledged paternity by a general course of conduct such as the use of the father’s surname by the child; and/or evidence of the alleged parent claiming the child as his child on any statement, tax return, or other document filed by him with the local or federal government.
In Ongoing Cases of Paternity
Sometimes a man believes he is the father of the child, but he is not married to the mother and the Court has not established paternity. In cases such as this, the father may register with the putative father registry.
This is helpful in preventing permanent paternity from being assigned to another. The court will notify those on the registry of impending court proceedings regarding the child.
It is important to note that the putative father registry does not establish paternity.
What is the Putative Father Registry?
The registry allows the putative father to be informed of attempts to adopt the child, terminate parental rights, or other issues related to the child’s paternity in the future.
In order to protect the putative father’s rights, he must register timely. A registration is considered timely when it is received: (i) before the child is born; (ii) within 10 calendar days after the child is born; (iii) within 10 days from personal service or by certified mailing of notice from the child placing agency or adoptive parent of an adoptive plan for a child; or (iv) within 10 days upon the discovery of fraud by the mother. An example of fraud is if the mother told the father that she had a miscarriage when, in fact, the child was born.
Paternity and Virginia Law
Determining which method to establish paternity can be a complicated and involved task. If you are seeking to establish paternity, consulting with an attorney can be advantageous to your case. If you’d like a confidential consultation regarding any paternity issues, call Cooper Ginsberg and Gray.