Custody cases are often associated with divorce proceedings, where two parents decide how they want to share their child-rearing responsibilities when they are no longer married. However, custody issues can and do arise between two parents who were never married to each other, and the process for handling them is different.

Here’s what you need to know about custody arrangements for unmarried parents and what legal rights you’re entitled to as an unwed mother or father.

What parental rights do unmarried parents have?

In Virginia, an unwed father does not have legal parental rights until he formally establishes paternity. If there is no dispute between the parents, paternity can be established at the time of birth by having the father sign a Voluntary Acknowledgement of Paternity (AOP). There is no additional cost to fill out this form at the hospital and it does not impact any government benefits for the parents or child.

If there is a dispute over who the father is, the court can petition for DNA testing to establish paternity. DNA samples are taken from the alleged father, mother, and the child. If the father successfully establishes his paternity, he can petition for custody and visitation rights, but he may also have to pay child support.

In cases of unmarried parents, the default position of many states is that custody is granted to the mother unless the father takes action. Virginia Courts do not favor one parent over the other in custody cases between unmarried parents, and always look at what’s in the best interest of the child. The Courts do, however, take the family’s situation into consideration, including which parent is the current primary caretaker.

How do we establish a custody and visitation arrangement as unmarried parents?

While divorcing couples in Virginia typically work out their custody arrangements in Circuit Court, unmarried parents must file their case to Juvenile and Domestic Relations (J&DR) Court. However, the decisions they’ll have to make are the same, regardless of the parents’ current or former marital status:

• Who is the current primary caretaker? The Court will consider which parent is the child’s current primary caretaker and if it is in their best interest to have the child continue to stay with them. If a judge determines it is not the best living situation for the child, they may rule against the primary caretaker.
• Do you want sole or shared physical custody? Shared physical custody is often seen as more equitable for both parents, though there may be good reason to seek sole custody of your child depending on your circumstances.
• Do you want sole or joint legal custody? Sole legal custody is when one parent has complete and total authority to make life decisions for the child, such as their education and health care. This differs from physical custody, which only determines who the child will live with and for how long.
• Is there a need to establish child support payments? Depending on the Court’s ruling, a decision may be made for one parent (typically the father) to establish child support payments. The amount of the support payments will be determined by each parent’s income and financial circumstances.

If you and your child’s other parent can agree on these terms, you may draft and file separate, uncontested petitions in the J&DR Court which address:  (1) custody (physical and legal); (2) visitation; and (3) child support. A separate court order will be entered for each matter by the judge, with each having its own case number assigned to it.  If you cannot agree, you will need to file petitions for each of these matters either on your own, with the help of the court services unit, or with the help of an attorney, so that a hearing can be scheduled before a judge who will then make the decision for you.

Get help with your J&DR child custody/visitation case.

If you’re an unmarried parent who is seeking to establish a custody arrangement for your minor child, My Legal Case Coach (MLCC) can empower you to represent yourself. We offer detailed legal case form packets with instructions and documents to help you move your case forward, plus a free hour of coaching with a licensed Virginia attorney is included with each packet purchase.

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Schedule a free consultation to discuss your situation and learn more about our legal coaching services.