Child support and custody are typically discussed in relation to divorce, but what happens when an unmarried couple with a minor child decides to end their relationship?
In Virginia, the court process for working out child support and custody/visitation orders is different for two parents who were never married to each other. If you and your ex are in this situation, here’s what you need to know about making legal arrangements and what your parental rights are after your relationship with the child’s other parent ends.
DCSE child support vs. court-ordered child support for unmarried parents
Unmarried parents have two primary options for establishing an order of child support: going through the Division of Child Support Enforcement (DCSE) or through a Juvenile and Domestic Relations District (J&DR) Court.
The Division of Child Support Enforcement can establish child support administratively through a paper-based process without the need for a court hearing. The parent who is seeking child support can fill out an application, which prompts DCSE to collect both parents’ financial information and establish an Administrative Support Order (ASO) based on those disclosures.
If there is no objection by the non-custodial parent, the DCSE’s ASO becomes valid. However, if either party does not agree with the support order issued by DCSE, they can appeal it and have a Juvenile and Domestic Relations District Court (J&DR Court) review and re-determine child support.
Regardless of how a child support order is established, DCSE both collects and monitors support as long as the order is valid if they are initially involved in determining child support.
Unmarried parents who wish to have a judge hear their case and determine their support arrangements can file a petition through one of Virginia’s J&DR Courts instead of going through DSCE. This is often done in order to obtain discovery from the other party and allow for arguments that cannot be effectively made using the DCSE administrative process.
If a party can easily “hide” income, a court process is often more effective to ensure the right amount of child support is ordered based on income from all sources, not just what they claim from their employment. With permission of the court, each parent can request copies of W-2s, paystubs tax returns, bank account statements, credit card statements, and other financials from the other parent that may reveal whether that person is receiving cash payments in tips or “gift” income, not related to a job, based on the “lifestyle” they are leading, while trying to claim they make far less in order to reduce the amount of support he or she is ordered to pay.
Once a judge makes a determination, the court will issue a CSO (Child Support Order) to the non-custodial parent, who often pays the custodial parent directly. However, if requested by the recipient parent of child support, the court will order administrative garnishment through DCSE to collect, track, and distribute payments if a party asks the Court to order it as part of the CSO.
If unmarried parents are making child support payments outside of DSCE, the process of enforcing payment is a bit more complex. If the parent misses a payment, there is additional paperwork that must be completed and filed to the court for contempt of a court order. From there, the court will determine what is owed and the action the parent must take to cure his or her contempt of these child support obligations.
Here are some factors the court considers when deciding on custody arrangements:
- Age and condition of both the child and parents: Both the mental and physical condition are considered to ensure the parents are able to provide for the child, as well as reviewing the child’s developmental needs.
- Family history: If there is any record of any type of abuse within the family, the court may decide the parent is unfit to provide or care for the child.
- The ability of the parents to meet and support the child’s needs: Each parent will be evaluated to see if they are able to assess and meet the physical, emotional, and intellectual needs of the child. This also includes the parents’ ability to support them financially.
- The relationship between parent and child: Before gaining custody of the child, both parents’ relationship to the child is reviewed, as well as the parents’ ability to cooperate in matters regarding the child.
- Location: Where the parent lives can determine what school the child attends, their access to medical facilities, and type of environment the child will experience.
In Virginia, unmarried parents must file any Petitions for Custody or Visitation with the Juvenile and Domestic Relations District Court (J&DR Court). Married parents, going through a divorce, have the option to file for this relief in the Circuit Court. While both parents do have rights when it comes to their child, if an unmarried father’s name is not placed on the child’s birth certificate at the time his child is born, or if the mother challenges paternity after the fact, then he will need to legally establish his paternity before he can claim any of those rights. Until paternity is clear and uncontested, an umarried father may run into issues when seeking an order of custody or visitation with the J&DR Court.
There are two types of custody that unmarried parents can petition for, and either parent has the option to do so. Physical custody involves where the child will live, and legal custody involves making decisions on behalf of the child including religion, medical decisions, and schooling. One parent may be granted sole custody of the child, or both parents can share custody.
With sole custody, one parent is granted sole legal and physical custody, while the other parent is granted visitation alone – and only if that parent files a Petition for Visitation with the J&DR Court. If a parent fails to file his or her own Petition for Visitation, the J&DR Court will not grant any visitation as the court does not consider that issue to be properly before the court.
Courts rarely award sole legal custody. Joint legal custody is far more common, allowing both parents the right to make decisions regarding the child’s education, medical care, etc. For physical custody, although many parents are agreeing more and more to share physical time with each other and their children on a weekly basis, absent such agreements, most courts will still award primary physical custody to the parent who has played that role in the child’s life since the child’s birth, while granting liberal visitation rights to the non-custodial parent.
My Legal Case Coach can help with your child custody and support case
The experienced family law attorneys working as Coaches to help you with your DIY case can provide expert advice on the matters of child support and custody, particularly helping with developing proper discovery requests to locate hidden income or a shared custody agreement. Looking for some guidance on obtaining child support as an unmarried parent? Schedule a 15-minute complimentary consultation to discuss your circumstances with My Legal Case Coach. We offer legal case form packets for J&DR Court, as well as virtual 1:1 coaching services to help guide you through the entire process.