What are the rights of an unmarried parent?
Updated: Feb 12
This is a wonderfully important question because it is something that we get on a regular basis. The short answer is that both parents have equal rights and access to their children in Virginia pending a court order. In other words, each parent has the exact same rights to the child as the other.
Now before I go any further there is a bit of a caveat that needs to be addressed. There is a presumption in the law that the person who gave birth to the child is the child’s mother. Since the information for a birth certificate is taken at the hospital by the staff, it is usually considered a presumption that the parents listed on the birth certificate are the parents. Now the father, if he is on the birth certificate, is presumed to be the biological father of the child. That can always be challenged, unfortunately, for a variety of reasons and methods. The first method is filing a motion to determine paternity by the mother or the father. This is a motion and subsequent hearing that involves DNA testing to determine that the alleged father is the father of the child or children. Again there is a presumption on the birth certificate so my position is until that birth certificate is modified or amended by court order, both parents have equal rights to the children. Another method is by filing the same motion but both parents go to Court and swear under oath that the alleged father is the actual father. This is normally limited to situations where the father’s name is not listed on the birth certificate.
The second method that grants the parties equal rights to the child or children involves marriage. If a couple is married, whether it is a heterosexual or a homosexual couple, the person who is not the mother is considered as the legal parent of the child if the child was born during the course of the marriage. This is a legal presumption. Now I am sure everyone can understand why it is just a presumption and not strictly binding because, well, people cheat. A couple can separate and someone gets pregnant after the separation of the parties. If the presumed legal father or parent by marriage is not being allowed to be a parent because of the infidelity of the mother, then that will be an issue to be determined by the court through the motion to determine paternity or disestablish paternity. Unfortunately, child custody can get this complicated and, it frequently does, in the event that parents really do not get along with each other.
As mentioned above, in Chesapeake, Virginia Beach, Norfolk, Portsmouth, Suffolk and many other juvenile courts throughout Virginia, there is a procedure for determining paternity if that is an issue. This involves filing a petition or a motion with the court, paying the filing fee and the service of process fee. If both parties go to court and swear under oath that each is the parent of the child, and there will be nothing further done other than an order entered saying the paternity of the child. If someone other than the mother is disputing paternity and the motion has been filed, despite the 99.9% confidence level that person may have, the courts do not look too favorably on granting interim rights or visitation let alone custody until paternity is established. The reason for that is simple - the court does not want the child to establish a bond or a relationship with someone who may turn out not to be the parent.
Now admittedly this is a long and convoluted way of getting back to the original question which is what are the rights of each parent if they are unmarried as it pertains to a child custody and/or visitation. Again, the parents stand on equal rights. One is not the presumed parent or custodian able to access or deny access to the other parent to the child or children. Each person has the ability to see the child or children, vacation with a child or children, take the child or children to the doctor, access school and medical records, enroll the child in school, attend school functions and spend as much time as possible with the child. As it pertains to who has custody, the answer is no one. No one has custody until a Court determines that custody has been decided.
What does that mean in the short term? When child custody and Virginia is still in dispute, the police will not enforce anything about taking a child away from a presumed parent unless leaving the child poses a risk or threat of harm. The harm does not have to be imminent but more likely than not to occur. In those situations, law enforcement tends to defer and let the courts decide the matter as it is civil not criminal. If you are an unmarried parent since custody is equal, I strongly encourage you to get a custody order as soon as possible. The child custody order will prevent either parent from leaving with the child. If that happens without an Order, then there is nothing to do to stop them since each unmarried parent has the same custody rights as the other. This does not mean that they can travel out of the country with the child and hide the child in a foreign country relying on those laws. There are resources in place, even though I do not have full access to them for this post, that prohibit international travel at least of the airlines. I do not know how they apply at borders such as Canada or Mexico when someone tries to cross in a vehicle whether it is a boat, train or automobile. If there is a real possibility that someone could disappear with the child or children, I would suggest you immediately file your child custody petition and ask for an emergency hearing to prohibit the relocation or removal of the child from a specific location.
So what should I do when I am waiting to go to court? That is easier said than done. When you are waiting if you have the child, I would strongly encourage you to facilitate the relationship between the child and the other parent. The courts do not look favorably on a parent who has withheld a child from the other parent. There must be a good reason and usually the threat of harm or the realistic risk of harm is a good reason. Now I wanna I also understand there is a concern that the child will not be returned. And that is a legitimate concern. I would also encourage you to keep a notebook or a journal of the efforts that you made, the other person made and how long each person kept the child. This can go along way and showing the court and you are more willing to coparent than the other parent.
Time to talk about what you can and cannot do when you were an unmarried parent in Virginia. We will also talk about what you should not do. All of these are extremely important. We start with the basic premise that unmarried parents in Virginia have equal rights relative to their child or children. What that means is that neither person stands ahead of where has authority regarding custody, visitation or decisions that exceeds the other parent. Towards that end, both parents or either parent can enroll the child or children in school, can seek and receive medical advice and treatment, can move with the child, and can travel across state lines. It is extremely important to remember that these rights and opportunities lie on both sides so either parent has the same ability to do this as the other. There does not have to be notice, does not have to be permission, and does not even have to require an itinerary or plans being provided to the other parent.
What cannot be done is a much shorter list. These include obtaining medical treatment when the consent of both parents as required. Some medical providers will not perform medical treatment unless there is a court order saying who has the final decision or both parents agree on what is best for the child or children. If there is a dispute, the medical provider has the ability to refuse to provide that medical service. Now in emergency situations this rarely if ever happens. There is a mechanism where a medical provider can contact to Judge for approval, however, this is rarely utilized.
What you should not do is perhaps the most important aspect of it all. At some point in time, unmarried parents may seek to get an Order from the Court regarding custody and or visitation. In those situations, the Court will look at what it’s called the statutory best interest factors in order to make a decision as to what is best for the child or children. Some of these factors include the ability of the parents to communicate with one another, the ability of the parents to resolve disputes among us each other, and the relative willingness of the parent to maintain or even encourage the relationship with the other parent. If this happens, the Court will look at everything that has happened before. The Supreme Court of Virginia has said that history is the best prediction of the future. In custody and visitation cases, the Court looks at what has happened since the last final order has been entered. If there has never been an Order entered, what happens is that the Court looks at what has occurred since the beginning of the child’s life. If one parent is deliberately and frequently interfering with the other parent and that parent’s ability to have a relationship with the child and children, then the Court will not look too kindly on this. What you should do, in my humble opinion, is work with the other parent as much as possible as well as encourage the relationship between the child or children with the other parent. Not only does this make common sense, as well as will go a long way for the Court in Virginia when it comes to making a child custody or visitation termination, and it usually is and what’s the chat best interest.
There is a saying that I use that I believe is extremely important in these cases. The mental health professionals tell us that a happy, healthy relationship between a biological parent and a child is always in the child’s best interest of the child. If the relationship is neither happy nor healthy, there should be some sort of effort to “rehabilitate“ that relationship. Think of it as physical therapy but more in the realm of psychological therapy and or just spending time together. If the relationship cannot be rehabilitated, then the relationship probably needs to be amputated. This means denying access or having significantly limited access between the child or children and the parent. This is an extreme measure, however, it is one that is unfortunately necessary at times.
Hopefully these answered some of your questions or at least got you thinking about what the rights are in Virginia for unmarried or of unmarried parents. We also have more blog posts on different custody and visitation matters.
Now that you know a little about the custody or visitation rights of unmarried parents, what is next. It depends on what you want to do. If you do not want a Court Order, then nothing is next. If you want an Order, then you will need to go to the Court to file a Petition for custody and/or a Petition for Visitation. Well then there is a trial based upon the facts of the case. I will not go into details about this in this post but if you have questions about how visitation is determined in Virginia feel free to read this Blog post. If you have questions about how custody is determined in Virginia, feel free to read this Blog post. If you want to know how to start a child custody case in Virginia, well I have this Blog post for you. There may also be a Guardian ad Litem appointed and we discuss a Guardian ad Litem in this post.
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For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
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