Having a child out of wedlock is quite common nowadays and it happens for numerous reasons. Maybe the couple has decided they don't want to get married because they don't believe in the institution. Maybe the couple has no intention of remaining together after their child is born, but they wish to co-parent. Or maybe the soon-to-be mother has been informed by the father that he wants nothing to do with the child in which case the mother may need help getting the father to provide financial support to his child.
Whatever the reason, if you and your child or unborn child's other parent are not married, you may have questions about paternity and how to make sure it's established properly. This article provides the basics of establishing paternity in Virginia. If you have specific questions after reading this article, you should contact an experienced family law attorney for help.
“Paternity” means fatherhood. In the legal sense, “establishing paternity” refers to the determination of a child’s “legal” father and the related rights and obligations of the father to the child. Every child has a biological father, but not every child has a “legal” father. When “paternity has been established” it means that someone has been named the legal father of a child.
Paternity is automatically established if the parents are married to each other when the child is born. The husband is the legal father and his name will be on the child’s birth certificate. In Virginia, if the parents of a child are not married to each other when the child is born, the child has no legal father until paternity is established. Once paternity is established, the father’s name will be placed on the child’s birth certificate and the father will gain certain rights to the child.
In Virginia, paternity can be established either “voluntarily” by signing a Voluntary Acknowledgment of Paternity form or “involuntarily” through a court order.
When the mother and father agree that the father is in fact the biological father, paternity can be established voluntarily. This requires both the father and mother to sign what’s called a “Voluntary Acknowledgment of Paternity.” This is often done at the hospital when the child is born. The mother and father must both sign the same form in front of a notary.
The Acknowledgment of Paternity is free if completed at the hospital and hospital staff will file the form for you. The form can also be obtained later from the Office of Vital Records, local health department clinics, local departments of social services, and local child support offices. However, if you obtain the form later, you must then file, or send, it to the Virginia Office of Vital Records yourself and there is a small fee. Once the Declaration is properly filed with the Office of Vital Records, the father is the legal father of the child and his name will be added to the child’s birth certificate.
Involuntary establishment of paternity is done through a court proceeding where the court issues an “order of paternity.” This method is called “involuntary” because someone disputes paternity, which is why it becomes a court issue. The mother, the father, the child, or the state if the child is receiving public assistance, can begin the court process by filing a “Petition to Establish Paternity” in the Juvenile and Domestic Relations District Court in the county where the child lives.
If after receiving appropriate notice of the court proceeding, the father doesn’t appear in court, the judge can enter a “default order” in his absence, declaring him the legal father. If the father appears in court and the mother and father both agree that the father is the biological father, the judge will immediately issue an order of paternity.
If either the mother or the father denies or is uncertain of paternity, they can request the court to order genetic or DNA testing. Today, a DNA test requires that the child, mother, and father have the inside of their cheeks swabbed. The DNA samples are then sent to a laboratory for analysis, which can establish with 99.9% certainty whether the father is the biological father. If the DNA testing confirms that the father is in fact the biological father, the court will issue an order of paternity. This order establishes the father as the legal father and his name will be added to the child’s birth certificate.
If either the mother or the father needs help establishing paternity, the Virginia Department of Child Support Enforcement offers assistance, including assistance filing a court action, arranging for genetic testing, and establishing orders of child support.
Establishing paternity means more than just having a father named on the child’s birth certificate. There are benefits for the child, the mother, and the father when paternity is established.
Establishing paternity helps children:
Establishing paternity helps mothers to:
Establishing paternity helps fathers to:
For the full text of the statutes regarding establishment of paternity, see Va. Code Ann. tit. 20, Ch. 3.1 § § 20-49.1 to 20-49.10.
The website of the Virginia Department of Social Services’ Paternity Establishment Program provides a wealth of information about establishing paternity, including pamphlets and videos.