Establishing and Contesting Paternity in Virginia
Establishing and contesting paternity in Virginia is a complicated and often emotional topic, with far-reaching consequences for both the child and the father. Paternity can be established or contested in a variety of ways, largely dependent on the marital status of a couple at the time of the child’s birth and the method used to establish paternity.
Where The Childs Mother is Married
In Virginia, a presumption exists when the child’s mother has been married for the ten months prior to the birth of her child, her husband is the father of that child (or, rather, the “presumptive father”). The presumptive father has the same rights and responsibilities as a “legal father”, someone who has been proven to be the father of the child.
However, the “presumptive father” has the option of seeking to rebut (or disprove) this presumption. The simplest method is through genetic testing, provided the genetic testing meets the below requirements:
- Results in a written report
- Results prepared and sworn to by an expert in genetic testing
- Results filed with the court 15 days prior to the paternity hearing
Although Virginia law allows the results of any genetic testing that meet these requirements (including an at-home test kit), asking the court to order genetic testing is the best means of guaranteeing the requirements are met.
Where The Childs Mother is Unmarried
In contrast, there exists no presumption of paternity when the mother of the child is unmarried at the time of birth. Under these circumstances, there are two ways for legal paternity to be established:
- Genetic Testing
- Voluntary Acknowledgement of Paternity
Genetic testing usually occurs when either the potential father or the mother of the child files a paternity action with the court asking that the court determine the paternity of the child.
A voluntary acknowledgment of paternity is a document signed under oath by both the potential father and the mother of the child stating that the child was fathered by the man in question. Before this process, the individuals will receive a verbal and written explanation of the rights, responsibilities, and consequences of the voluntary acknowledgment. This is a decision that should be considered carefully by both individuals and the acknowledgment should not be signed lightly. Either party has the right to rescind their acknowledgment for up to 60 days after signing the document. After that, a court order will be required to disestablish paternity.
Unfortunately, it is sometimes necessary to seek the disestablishment of paternity, when facts surface that suggests that either the presumptive father or a father who voluntarily acknowledged paternity is not in fact the biological father of a child. In order to disestablish paternity, a suit must be filed with the court asking that the court make a determination about the child’s paternity.
In some cases, prior to filing a suit to disestablish paternity, there has been required child support paid by the man in question. That is why it is crucial for the disestablishment of the paternity process to begin as quickly as possible, as this Florida man learned recently. Disproving paternity does not stop the clock on child support payments that have been ordered by the court, nor does it immediately stop court-ordered custody or visitation.
Regardless of whether you are seeking to establish or disestablish paternity on behalf of yourself or another individual, our team of seasoned attorneys can assist you in navigating the complex process, answer your questions, and provide legal advice regarding your particular situation.
By: Whitbeck Bennett
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