In most states, an unwed mother of the child has automatic custody of her child/children. However, in Virginia, that is not the case and there is no automatic presumption of who gets child custody for either parent. In Virginia, unwed mothers and fathers must both go through the court to obtain legal custody of any child born.
In the state of Virginia legal custody refers to a court order which gives either the mother or father physical custody and control of the child. The parent who has legal custody is given the right to control where the minor lives, the child’s schooling and most other decisions regarding the child. Depending on the best interest the court might grant sole custody to one parent, for example, the mother or joint guardianship to both parents.
In the case only one parent has custody the court will order the other parent to pay child support.
In most cases in Virginia, the mother will be granted sole physical guardianship of the minor, unless the father takes some sort of action to secure custody as well. An unwed father may first need to establish legal paternity and the mother must provide proof that she has given birth to the minor. According to chapter 3.1 section 20-49.1 this can be done through a DNA test or a voluntary written statement under oath by the mother and father stating that he is in fact the father of the juvenile, before guardianship can be considered by the court.
An unwed couple can establish a parenting plan that will be filed with the court. This can include details regarding the juvenile’s physical guardianship, visitation, education, religion, minor support and how potential changes may be dealt with such as if either spouse gets married or decides to move. In the event that the couple does not come to an agreement on one or more of the terms above, either spouse may request that the judge decides for them at a contested hearing in which the judge will give primary concern for the juvenile’s best interest and make a decision based on that.
The Virginian court will base its decisions on guardianship and visitation by looking at the best interest of the child. If the best interest of the juvenile is to stay with his/her unwed mother who has been the primary caregiver to the minor, then the court will decide on giving physical guardianship to the mother and vice versa for the father. Factors considered by the court include the mental and/or physical health of parents and the juvenile, each parent’s lifestyle, each parent’s ability to provide food, clothing and shelter, the emotional bond between both parents and the minor. In some cases depending on the maturity and age of the minor the court will take into consideration the juvenile’s preference all before coming to an agreement on guardianship and visitation.
Under Virginia juvenile guardianship laws an unwed mother or father who deserts or fails to support the minor may be punished by law. This is a misdemeanor of the first degree and may be punished by a fine or up to 12 months in prison or both.
If you need a Virginia Child Custody lawyer to help you with your Child Custody case in Virginia, call us at 888-437-7747. Our Virginia Child Custody attorneys can help you.