Determining child custody for unmarried couples involves establishing legal parental rights and addressing child support, visitation, and custody agreements to ensure your child’s best interests are met.
For example, if you are the father of your child, you still need legal proof of being your child’s biological parent. A Virginia custody and visitation lawyer will give you a better understanding of your legal rights as an unmarried parent and help you petition for custody.
Who Has Custody of a Child When the Parents Are Unmarried?
The experience of unmarried parents regarding child custody will be different from that of divorcing couples, which is why hiring a Virginia family lawyer helps. If you are unwed, there is a presumption under Virginia child custody laws that the mother has custody of the child. In such circumstances, fathers are on the outside unless they can prove paternity.
To do so, the father must sign an Acknowledgement of Paternity (AOP) at the time of the child’s birth or sometime afterward. This allows the child’s birth certificate to include both parents’ names. The child’s mother must also willingly sign the AOP, confirming the father of the child.
If not, the biological father can still take action to prove paternity by undergoing a paternity test (DNA test). Such tests may require a court order, and the father will need to file a Petition to Establish Paternity to prove parentage. When either an AOP or positive paternity test is available, then the child is not presumed solely to the custody of the mother.
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Parental Rights of Both Parents When They Are Unmarried
When determining child custody of unwed parents, the court will focus on the best interests of your child. While mothers are automatically granted parental rights, unmarried fathers must provide proof before both will be considered legal parents.
Mothers’ Rights
Unless found unfit to be a parent, the mother, in most cases, will have full child custody rights. Family law does not require the mother to initiate legal action to gain custody of the child or decide what role the father may play.
However, the unmarried mother must understand that she is responsible for all aspects of the child’s life, including health and well-being, education, and housing arrangements.
Fathers’ Rights
The father needs to take action in order to gain any level of custody. Once paternity is established, such as outlined in VA Code § 20-49.5 with an AOC or inclusion on the child’s birth certificate, the court will not favor sides, and the unwed father can seek custody.
The child’s father can discuss and determine legal child custody arrangements for how best to care for the child, including the provision of child support, visitation rights, relocation notifications, and more.
What Are the Different Types of Custody for Unwed Parents?
Several types of custody can come from a legal arrangement involving unwed parents. In most cases, Virginia’s child custody laws require you to present enough supporting evidence to determine what is best for your child.
Third parties, such as grandparents, will not normally be considered in custody decisions unless special circumstances exist.
Legal Custody
Legal custody refers to the full parental ability to make important decisions and to plan for your child in all areas, including educational, medical, housing, and anything else that relates to the welfare and well-being of your child.
Both you and your co-parent can seek and gain legal custody of your child as long as you can agree to the terms involved. However, you may also seek sole legal custody and be responsible for making all decisions for your child without requiring input or approval from the other parent.
Sole Custody
Both you and your co-parent can seek sole custody of your child once the father confirms paternity. However, whichever parent is seeking this type of custody arrangement, proof will be required to show that the other parent is in some way unfit to care for your child or will fail to put their best interests first.
Such evidence may include that the co-parent is unable to provide for the various needs of your child, including health care, housing, and education. If granted, the non-custodial parent will be unable to make decisions for your child and may or may not be granted visitation rights.
Joint Custody
Joint custody (shared custody) of a child involves both parents providing support, and this involves legal and physical custody responsibilities. This type of custody is also referred to as co-parenting and imparts equal rights to the mother and father to make important decisions.
Once such a custody order is reached in court, both you and your co-parent must adhere to it at all times.
Physical Custody
While both parents may be granted legal custody of a child, physical custody requires examining a set of legal issues and factors, including the connection shared between your child and each parent and also the display of commitment. Physical custody occurs when a child lives with a parent for most of the year or even full–time, depending on the particular circumstances.
As such, the parent with primary custody is able to make daily decisions to meet the child’s needs. In some instances, the unmarried parents may determine that one parent’s location is best for the child full-time and grant the other parent generous visitation rights.
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Will a Court Have to Decide on Who Gets Custody?
If you and your co-parent cannot agree and paternity was established through a test or a signed AOP, the courts will decide custody. This action requires filing a petition for child custody in a family court and scheduling a hearing.
During this hearing, you and your co-parent will present your cases as to why you should have custody and also determine visitation rights if necessary. For these reasons, how you present your case is important, and seeking legal advice on how to proceed will be beneficial.
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What do the Courts Look for When Determining Custody?
The role of the family court is to determine and decide what is in the very best interests of your child. Due to this, the courts consider several factors when deciding the custody of children. These factors include:
- Who is the current caregiver
- In whose care the child has been in the most (parenting time)
- The physical and mental health of you and your co-parent
- Work schedules and earnings
- Any history of alcohol abuse, drug abuse, or domestic violence
- The potential of both you and your co-parent to encourage your child to maintain a positive relationship with the other parent
- Your child’s current relationship with each parent and other family members
- If a certain age, the preferences of your child
Can a Court Order for Custody Be Amended?
After a court order is granted, changes may become necessary. Perhaps a change in your work schedule or a relocation occurs. If so, you can request a modification to a court order for custody of children by filing a Motion to Amend with the Clerk of Court’s Office.
You will need to present a compelling reason for a change, and the court will evaluate your motion using the same standards as it did with the previous decision, including the best interests of your child.
An experienced family law attorney will help you prepare this motion and convince the judge that the change is necessary and beneficial to your child.
Are Both Parents Required to Pay Child Support?
In addition to determining child custody of unwed parents, child support must factor into your case. Both you and your co-parent are expected to support your child and meet their requirements. However, a court can decide what you or your co-parent’s child support payments will be.
The court will evaluate your and your co-parent’s incomes, responsibilities, and contributions while also factoring in the needs of your child, such as necessary medical treatments or educational needs.
The question to answer is whether one parent should provide financial support in the form of payments to the other parent. If so, the court will also enforce such requirements to the best of its ability.
Call Us to Learn More About Child Custody of Unwed Parents in Virginia
Child custody of unwed parents in Virginia can be uncertain, so seeking custody and child support may become a requirement. An experienced family law attorney with Melone Hatley, P.C. will sort through all the factors involved in your child custody issue, provide helpful legal advice, and represent you in court if needed.
We have handled thousands of custody cases, including child custody for unmarried couples, and our client testimonials demonstrate our dedication. We have helped both married couples and unwed parents with custody issues. Regardless of your marital status, we want to help you gain custodial rights, set reasonable visitation schedules, and understand child custody rulings.
Call our office today to access a free consultation with our Client Services Coordinators.
Schedule a call with one of our client services coordinators today.
