It's fairly common nowadays to hear of children being born out of wedlock. Many committed, unmarried couples make a conscious decision to have children outside of marriage, possibly because they have no desire to marry or because they plan to get married after the birth of their child.
In other cases, couples have broken up despite a pregnancy, or the father has simply made it clear that he wants nothing to do with the mother (and maybe even the child).
In all cases where a child is born to unmarried parents, it's important to establish "paternity," which refers to the legal relationship between a father and his child. In West Virginia, paternity is what gives a father the right to request custody and visitation with his child. And once paternity is established, the father is legally obligated to provide financial support to his child.
This article explains the ways paternity can be established in West Virginia. If you have questions after reading this article, you should contact a local family law attorney for advice.
When the father and mother of a child are married, paternity is automatically established when the child is born. When the parents of a child aren’t married, paternity has to be established before the father’s rights and obligations take effect.
Paternity in West Virginia is established either when the parents agree that the father is the biological parent of the child and sign documents that say so, or when a court enters an order stating that the father is the biological parent of the child.
West Virginia allows parents to establish paternity when the mother and father sign a “Notarized Affidavit of Paternity.” The notarized affidavit should list both parents’ social security numbers, addresses, and should state that both parents acknowledge paternity. The affidavit should also state that both parents understand the rights and obligations of paternity as well as the alternatives to acknowledging paternity. Once the original notarized affidavit of paternity is filed with the State Registrar, paternity has been established.
Do not sign an affidavit of paternity if you are not absolutely sure you are the father of the child in question. Signing the affidavit means you agree, without any further proof, that the child is yours.
If you want to rescind (take back) your acknowledgement of paternity after signing it, you’ll have 60 days from the date of the affidavit to file a complaint to rescind it. If it’s been more than 60 days, you’ll have to prove that you were forced or tricked into signing the affidavit. This process can be complicated. If you want to rescind your acknowledgment, you should speak to an experienced West Virginia family law attorney for advice.
If one parent won’t acknowledge paternity, you will need to file a “Petition to Establish Paternity” in your county circuit court asking the court establish paternity. You’ll also need to serve the other parent with a copy of your petition; the circuit court clerk can give you options to serve the other parent.
If the other parent still doesn’t agree on paternity, the court will order the child and parents to undergo genetic tests to determine paternity. Once paternity has been established, each parent has to complete a parent education class and file their certificate of completion with the county circuit court clerk.
Any of the following people can file a petition to establish paternity:
To establish paternity in court, the petition has to be filed before the child’s 18th birthday, unless the child files the petition, in which case it can be filed at any time. The judge can also decide other issues like child support, custody and visitation.
West Virginia allows children to file a petition to establish paternity at any point in their life because the state believes children deserve to know their parents. When paternity is established, the child has the right to be financially and emotionally supported by both parents. The child may be able to get benefits from parents like health insurance, Social Security or veterans’ benefits. A child can inherit from both parents once paternity has been established. Just having access to both parents’ families’ medical history can also greatly benefit a child.
A mother benefits when paternity is established by having the father pay financial support for the child. A mother can ask the court to award her past due child support up to 36 months, in addition to birthing or medical costs.
A father benefits when paternity is established by getting rights to visitation with the child and the right to have input on decisions that affect the child’s future.
Click here to learn more about child custody in West Virginia.
If you have other questions about establishing paternity in West Virginia after reading this article, contact an experienced family law attorney.
Read the full text of the law on paternity in West Virginia in the West Virginia Code, Chapter 28, Article 24.
A link to the West Virginia bureau of child support enforcement, which may be able to help you file a petition to establish paternity, is here.