Written by attorney Mary G. Commander

Rights of Unmarried Fathers in Virginia

Rights of Unmarried Fathers in Virginia

Some states define the term “Father" by statute. Virginia does not.

Virginia has established a “Putative Father Registry" which is a statewide database. You can register online at Registration is required of all unwed fathers who wish to receive notice of adoptions or termination of parental rights. If you do not register, your rights can be lost.

Virginia also has created the Virginia Paternity Establishment Program to help with establishing paternity. Virginia Code Section 63.2-1914 further requires each public and private birthing hospital in the Commonwealth to provide unwed parents the opportunity to legally establish the paternity of a child prior to the child's discharge from the hospital following birth, by means of a voluntary acknowledgment of paternity signed by the mother and the father, under oath.

Until paternity is established, an unwed father’s lights are limited.

Paternity Registry Virginia Code §§ 63.2-1249; 63.2-1250 A man who desires to be notified of a proceeding for adoption of, or termination of parental rights regarding, a child that he may have fathered must register with the Putative Father Registry before the birth of the child or within 10 days after the birth.

A man will not prejudice any rights by failing to register if:

  • A father-child relationship between the man and the child has been established pursuant to §§ 20-49.1 or 20-49.8, or the man is a presumed father as defined in § 63.2-1202.
  • The man commences a proceeding to adjudicate his paternity before a petition to accept consent or waive adoption consent or a petition for adoption or a petition for the termination of his parental rights is filed with the court.

Failure to register shall waive all rights of a man who is not an acknowledged, presumed, or adjudicated father to withhold consent to an adoption proceeding unless the man was led to believe through the birth mother's fraud that the pregnancy was terminated or the mother miscarried when in fact the baby was born, or that the child died when in fact the child is alive.

Any man who has engaged in sexual intercourse with a woman is deemed to be on legal notice that a child may be conceived and the man is entitled to all legal rights and obligations resulting therefrom. Lack of knowledge of the pregnancy does not excuse failure to register in a timely manner, except when the identity of such man is reasonably ascertainable.

Alternate Means to Establish Paternity Virginia Code § 20-49.1 The parent and child relationship between a child and a man may be established by:

  • Scientifically reliable genetic tests, including blood tests, that affirm at least a 98-percent probability of paternity. Although genetic testing is relied on almost solely now, other evidence to establish paternity still remains in the statute, i.e.,:

Section 20-49.4 Evidence relating to parentage

1. Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception;

2. Medical or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts. If a person has been identified by the mother as the putative father of the child, the court may, and upon request of a party shall, require the child, the known parent, and the alleged parent to submit to appropriate tests;

3. The results of scientifically reliable genetic tests, including blood tests, if available, weighted with all the evidence;

4. Evidence of the alleged parent consenting to or acknowledging, by a general course of conduct, the common use of such parent's surname by the child;

5. Evidence of the alleged parent claiming the child as his child on any statement, tax return or other document filed by him with any state, local or federal government or any agency thereof;

6. A true copy of an acknowledgment pursuant to Sec. 20-49.5; and

7. An admission by a male between the ages of fourteen and eighteen pursuant to Sec. 20-49.6.

  • The Department of Social Services may establish the parent and child relationship between a child and a man upon request, verified by oath or affirmation, filed by a child, a parent, a person claiming parentage, a person standing in loco parentis to the child or having legal custody of the child, or a representative of the Department or the Department of Juvenile Justice. The request may be filed at any time before the child attains the age of eighteen years. Section 63.2-1913 Administrative Establishment of Paternity
  • A court order establishing paternity through the filing of a Petition to Establish Paternity in the Juvenile and Domestic Relations District Court where you live.

Written acknowledgments of paternity made under oath by the father and mother prior to July 1, 1990, shall have the same legal effect as a judgment entered pursuant to § 20-49.8. Revocation of Claim to Paternity

Virginia Code § 20-49.1 An acknowledgment of paternity may be rescinded by either party within 60 days from the date on which it was signed unless an administrative or judicial order relating to the child in an action to which the party seeking rescission was a party is entered prior to the rescission.

A written statement shall have the same legal effect as a judgment entered pursuant to § 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress, or a material mistake of fact. In any subsequent proceeding in which a statement acknowledging paternity is subject to challenge, the legal responsibilities of any person signing it shall not be suspended during the pendency of the proceeding, except for good cause shown.

Relief from Paternity Determination.

Virginia Code 20-49.10

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The petitioner shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

The bottom line is that it is important to have the paternity established early on; however, it is equally important if there is any doubt as to paternity to have that resolved early on too. It is much less traumatic to have an infany's DNA tested and find out that the child is not yours than to discover it farther down the road.

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