Many states determine that an unwed mother of a child has automatic custody of her child and the father must go through court to prove that he is the father in order to obtain any rights to the child. In Virginia there is no presumption of custody in favor of either parent. Unwed mothers and fathers must go through the court to obtain legal custody of any child born.
Legal Custody of Children in Virginia
According to Virginia state law (chapter 11 section 16.1-228), "legal custody" is defined as a status that is created by a court order which gives either the mother or the father the right to have physical custody and control of the child. The parent who is awarded legal custody will be given the rights to determine where the child will live, the child's schooling and make most of the decisions regarding the child. In determining the best interest of the child, a court may grant sole custody to one parent or joint custody to both parents. The court may also order the parent that does not have custody to pay for support of the child.
Determining the Parent Child Relationship
Once a petition is filed with the court and prior to being awarded custody, both parents must prove to the court that they are in fact the parents of the child. According to chapter 3.1 section 20-49.1, the mother of the child is determined by showing proof that she has given birth to the child. The father of the child is determined by either a paternity test or a voluntary written statement under oath by the father and the mother stating that he is in fact the father and filed with the court having jurisdiction.
Determining Child Custody and Visitation
The court will determine the child custody and visitation, giving primary concern to the child's best interest. The court will also make sure that the child has ample contact with both parents. Parents are also encouraged to share in the responsibilities of caring for the child. In determining the best interests of the child, the court must look to many factors, including, but not limited to, the age and mental condition of the child and the parents and the kind of relationship the child has with both parents. In some cases, depending on the age and maturity of the child, the court will consider the preference of the child.
Desertion or Failure to Provide Support
Any mother or father who deserts a child or fails to support the child may be punished by law. In Virginia this is a misdemeanor of the first degree and the law allows a fine, up to 12 months in jail or both.