Child Custody -Unwed parents

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MorgansDaddy said:
http://www.cravensnoll.com/Family-Law/Child-Custody-and-Support.shtml

The father has to assert his rights in Virginia by petitioning for custody and/or visitation.

VA code doesn't specifically say that, but states what a father must do to get custody and/or visitation, or basically, assert his rights.
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Well again, paternity is not in question in this case- it is established. The quote provided here seems to be addressing situations where paternity is in question, and also situations in which the parents are not already living together and sharing the child as was described by the OP. If paternity was in question, or if the parents were already living seperately and the father did not already have free access to the child, then I agree he would most certainly need to petition the court because nothing is established. That is not the case here though.

In a case such as this where the father already lives in the same home as the child and has free access to the child it would be very difficult to find him in violation of anything at all for doing anything that the mother might do with the child. Yes, once it reaches the court custody may likely be given to mom and father's access restricted or defined, but until then there appears to be absolutely nothing in the state law, other than a court order, to limit what the father may do with the child.

Perhaps I am looking in the wrong place, but I am flipping through Title 20. It addresses how parentage is determined, but there is nothing at all in the code that says mom automatically has custody and dad is out of luck. That may very well be what happens in practice (especially in cases where the parents are not already sharing the same home with the child), but not until the parents get to court. There appears to be no penalty whatsoever for dad doing what you are saying he can not do which means it is not illegal for him to do it. So long as he doesn't cross a line toward parental abduction or child concealment, or whatever the relevant VA statutes are for that matter, it really does appear he can do what he wants with his kid until a court tells him otherwise. Of course, the same is true for mom.

I'm not trying to be argumentative over this- just looking for a clear statute that addresses this because I hear it said quite a bit, although in most cases the parents are not living together which makes it far easier to support. We can say that mom has custody and all the rights to the child because we know from experience that is how the court is likely to go with it whenever the parents get that far, but absent a statute or court order to support the statement it really means nothing. An emergency custody order is only a phone call away, but still, until it is obtained there is nothing for anyone to enforce and no authority to remove the child from one parent and hand it over to the other.
 
mightymoose said:
Well again, paternity is not in question in this case- it is established. The quote provided here seems to be addressing situations where paternity is in question, and also situations in which the parents are not already living together and sharing the child as was described by the OP. If paternity was in question, or if the parents were already living seperately and the father did not already have free access to the child, then I agree he would most certainly need to petition the court because nothing is established. That is not the case here though.

In a case such as this where the father already lives in the same home as the child and has free access to the child it would be very difficult to find him in violation of anything at all for doing anything that the mother might do with the child. Yes, once it reaches the court custody may likely be given to mom and father's access restricted or defined, but until then there appears to be absolutely nothing in the state law, other than a court order, to limit what the father may do with the child.

Perhaps I am looking in the wrong place, but I am flipping through Title 20. It addresses how parentage is determined, but there is nothing at all in the code that says mom automatically has custody and dad is out of luck. That may very well be what happens in practice (especially in cases where the parents are not already sharing the same home with the child), but not until the parents get to court. There appears to be no penalty whatsoever for dad doing what you are saying he can not do which means it is not illegal for him to do it. So long as he doesn't cross a line toward parental abduction or child concealment, or whatever the relevant VA statutes are for that matter, it really does appear he can do what he wants with his kid until a court tells him otherwise. Of course, the same is true for mom.

I'm not trying to be argumentative over this- just looking for a clear statute that addresses this because I hear it said quite a bit, although in most cases the parents are not living together which makes it far easier to support. We can say that mom has custody and all the rights to the child because we know from experience that is how the court is likely to go with it whenever the parents get that far, but absent a statute or court order to support the statement it really means nothing. An emergency custody order is only a phone call away, but still, until it is obtained there is nothing for anyone to enforce and no authority to remove the child from one parent and hand it over to the other.
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Thanks again everyone for all your knowledge and research. As I said before, it sounds as if even what the law regarding custody in VA is not cut and dry. So it sounds like the best thing is for her to petition the court for custody as she is leaving their joint home and after things die down from her leaving him, and since she isn't planning on leaving the state for approximately 6 months, petition the court then for permission to leave the state.
Thanks All!
 
Your making a good point Moose. That section is interpreted in VA to mean that the father has to file to assert his rights and spells out how he goes about doing it and his rights in the process. So, no, he really wouldn't be violating anything that would result in criminal charges.

VA law on this matter is about like a lot of laws, it is worded with very general language that could be interpreted in different ways by different people.

When my daughter was born, we were told my name on the BC didn't mean a whole lot, and if we were to separate, I wouldn't have any rights until a court order spelled them out. I thought that was ridiculous and the person who told me that crazy. That was, until the court told me basically the same thing when I called and asked, and told me if that was my situation, they couldn't give me any real advice and to speak to an attorney. Of course that wasn't an issue for me and we are married, about to celebrate our fourth anniversary next month.
 
Yes, I understand the reasoning for the general language as it is impossible to have a statute to address every given situation.
That same general language is what allows the father to do what he wants with his kid though... until told otherwise by the court.

In fact, Title 20 does not even address custody other than the procedure for determining it. If there is something else relevant in the state codes I haven't found it yet. Title 20 seems to be the most relevant area in the state law, and since it does not address custody, or the presumption of custody, then that just reinforces the point that the parents need to get in to court because neither of them have a higher level of custodial rights over the other without a custody order. What I would really like to find is something in the state codes that establishes that the mother is presumed to have sole custody when not married. I have been looking for the same for my own state but haven't found it, although I find many references to "doctrine"... but doctrime still means nothing intil implemented by a court.

In fact- § 20-124.2:
B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.

That section does not differentiate between wed or unwed parents- it only refers to parents. § 20-49.1 addresses how parents are determined- the mother by giving birth and the father by a number of ways... one of which is a written statement by mother and father under oath that he is the father. To my understanding, VA accepts the signatures on the official birth certificate as satisfying this requirement, and the father is further established under § 20-49.4 since the parents live together, if the child has his last name, and if he has ever claimed the child for tax purposes. If there is no question, as in this case, that he is the father, then according to Title 20 the father appears to have the same rights toward the child as the mother until a court intervenes and says otherwise.

If they lived apart from each other and dad had to climb through a window in the middle of the night to access the child, ok, clearly there is a problem that needs to be addressed and dad's resulting arrest would allow the child to be returned. If they live apart from each other and mom lets dad take the child for the afternoon but dad doesn't return the child... without a custody/visitation order to enforce, I don't see any authority for anyone to remove the child from dad's custody until a judge orders it. Again, that could only be a phone call away, but could depend upon the circumstances as well- such as dad keeping the child because he has cause to believe mom is about to permanently leave the state with the child. In such a case I would expect the court would still provide that the child be returned to mom, but also order her not to leave the state, and then the matter is before the court to be addressed and a custody/visitation order would result.

Anyway- my whole point is that everyone always jumps on mom's side because we all know how the courts tend to eventually rule in these matters, but until one of the parents brings the matter to the court to be heard none of it means anything unless it is established in state statutes that can be enforced by police, social services, or other agencies.

I've just done a quick search and although I find lots of talk about mom having presumed sole custody if unmarried, I can't find a single state statute (for any state) that affirms this. To me, that means that it is not presumed until the court says so case by case, otherwise it would be in statute.
 
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This is very simple.

Custody is immediately vested in an unwed mother by virtue of giving birth.

The presumptive father must, in every jurisdiction, do two things to secure proper paternal rights.


He must first establish paternity.

That can be done in two ways, by formally acknowledging paternity (usually signing a birth document) or via DNA testing.

If the father does not then go to court, he has no custodial rights.

The other side of that coin is a married couple. His name is Fred. Her name is Sue. Sue has an affair with Leroy. She gets preggers with Leroy's child and bears a son.

Leroy is not the legal father. Poor Fred is the legal father with full custodial rights with Sue.



I could bore you with the whys and wherefores, but why bother? Poor Fred is on the hook for life, because Sue was "catting" around with Leroy.

It doesn't need toake sense to be the law. It, nevertheless, is the law. Unwed fathers have no rights, unless and until they receive them by court order.

Unwed mothers are vested with full custodial rights. It is the law in every state with little deviation!!!
 
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army judge said:
It is the law in every state with little deviation!!!
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That is what everyone keeps saying, but I have yet to find a statute that says so for any state. Everything that is referred to is procedural as to how the court will determine parentage and custody, but there seems to be nothing that addresses custodial rights of either parent BEFORE the court gets involved. It is as if it is left up to the parents to resolve, and to seek the assistance of the court when there is a disagreement... which seems very reasonable.

In Virginia's Title 20 that I quoted above it specifically states that there shall be no presumption or inference of law in favor of either parent when determining custody. With that clearly stated in statute I don't see how it can also be true that mom also has sole custody rights by virtue of giving birth and dad has none.... and that conflict is very likely why that position is not declared in the statute.

If the matter really is so simple, why can't anyone produce something in state statute that supports the claim that mothers have custodial rights and fathers do not? There seems to be nothing at all about how to determine custody and rights toward the child prior to court intervention.

Where I can see custody being inherent in the mother is where paternity is in question, or the parents never lived together, or the father does not otherwise have free access to the child. In those cases mom would have custody because there is nobody to share it with if paternity is not established, and if dad does not live in the home then there are complications with access to the child that would need to be addressed in court first.

So I'm still asking, if anyone is familiar with a statute in any state that specifically addresses an unmarried mother's automatic sole custody of a child please share it... I can't find one.

Virginia's Title 20 only establishes the mother as a parent of the child by virtue of giving birth. It also establishes the father as a parent in a number of other ways. Title 20 says the law is not inferred or presumed to favor either parent. It seems to very clearly be the opposite of what is being touted as universal in the responses to this topic.
 
Just to be clear, that pretty much means the COURT does not favor the mother or the father more than the other when deciding custody (as in once it gets to court).

Just because the state statute doesn't spell it out, doesn't mean it's not presumed to be that way (it is). Ask any good lawyer in Virginia, or call any court that deals with juvenile and domestic relations in Virginia. Obviously the court can't give any information that could be deemed advice though.

Unmarried Mother's Primary Right To Custody

The unmarried mother is presumed to have the primary or natural right to custody of children born when she is not married. Therefore, she has the legal right to custody, care, and control over the child and her rights are superior to those of the father or any other person. These rights can be defeated if it can be shown that the mother is unfit or has abandoned the child.
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http://www.legalmatch.com/law-library/article/child-custody-between-unmarried-parents.html

I give up though and will just agree to disagree.
 
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MorgansDaddy said:
Just to be clear, that pretty much means the COURT does not favor the mother or the father more than the other when deciding custody (as in once it gets to court).

Just because the state statute doesn't spell it out, doesn't mean it's not presumed to be that way (it is). Ask any good lawyer in Virginia, or call any court that deals with juvenile and domestic relations in Virginia. Obviously the court can't give any information that could be deemed advice though.


http://www.legalmatch.com/law-library/article/child-custody-between-unmarried-parents.html

I give up though and will just agree to disagree.
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Yes, I realize that Title 20 is referring to court procedure, but that is the only reference in the state code that addresses it- there is absolutely nothing addressing custody matters PRIOR to court.
It isn't that the state statute doesn't spell it out. It doesn't even begin to address it.
All I have been getting at is that this presumption that is being referred to is apparently not made UNTIL it gets to court, but even then it contradicts what is stated in Title 20.
There seems to be nothing in the state law that addresses custody before going to court, and as a result there is no authority for anyone to remove the child from one parent and hand it over to the other. It seems at the time someone puts it before the court that presumption might be made until a full hearing is set, but until that time mom and dad are left to themselves to work it out.

There appears to be nothing at all that gives mom more rights than dad UNTIL she goes to court and sets things in motion. If that is not the case please refer to the appropriate authority that says otherwise... I can't find it anywhere.

A simple scenario:
Mom and dad are unwed and do not live together. For three years the child has lived at mom's home and dadtakes the child for visitation on the weekends from time to time. Dad gets word of mom's intention to move out of state, several hundred miles away. On dad's next visitation he keeps the child and does not return it at the usual time, intending to prevent the mother from leaving the state with the child. Mom does not dispute that he is the father.

If mom is presumed to have sole custody of the child and dad is doing something wrong- under what authority does law enforcement, social services, or anyone else remove the child from the father's custody and give it back to mom if there is not an existing court order regarding custody/visitation for them to enforce?

The answer appears to be that there is none. There is no law that addresses this. Nobody can enforce a presumption of law that is not on paper- it does not exist. What must happen is that mom must get a custody order from the court. Only a judge has the authority to order the child be removed from one parent and handed over to the other if there is no other law for law enforcement or social services to take action on.

Dad has violated no law and there is no consequence for not returning the child to mom upon her demand. Dad has nothing to worry about unless he violates a court order which compels him to return the child at a specific time.

If mom does not seek the assistance of the court and obtain a custody order the child is going to stay with dad. Nobody is going to intervene otherwise without putting hisself in legal limbo.

In that scenario above mom would ultimately get an emergency order which would get her the child back but likely include an order to not leave the state until the court has opportunity to address custody/visitation.

These presumptions about custody mean absolutely nothing outside a courtroom. Nobody can enforce them, and nobody is bound by them, without a court order and proper service.
 
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Moose, this is a creature of legal precedence and prior court decisions. It begins, but does not end with statutory law.

An unwed father has no custodial rights (visitation included), unless the unwed mom allows him such. That is akin to a wink and a handshake.

Therefore, an unwed father must take some affirmative steps to create and protect his paternal rights. He must first acknowledge or prove his paternity.

Then, he must petition a court to recognize and honor his paternity and custody. If he fails to do same, his custody is dependent on the whims of the unwed mom.

An unwed dad, unlike an unwed mom, has no inherent parental rights. He must take affirmative legal steps to obtain same. Mom is vested with such rights because she bore the child to term. It is, initially, an all or nothing proposition.
 
So here is my last question about this. In Virginia if my daughter, as an unwed mother, petitions the court for custody, what is the procedure, specifically, does she petition and get custody paperwork the same day, does there have to be a hearing where both parties have to attend, and if so how long does it take to get cutody as the mom??
 
army judge said:
Moose, this is a creature of legal precedence and prior court decisions. It begins, but does not end with statutory law.
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There appears to be nothing statutory law. Anything else is beyond the ability of anyone to enforce without court action.

An unwed father has no custodial rights (visitation included), unless the unwed mom allows him such. That is akin to a wink and a handshake.
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Yes, prior to any court action it is all between mom and dad and the agreements they make. If they can't agree then they need the court. Absent a court order there is nothing at all that says dad has no custodial rights. There appears to be no authority at all for anyone to take the child away from the father upon mom's demand.

Therefore, an unwed father must take some affirmative steps to create and protect his paternal rights. He must first acknowledge or prove his paternity.
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Only if challenged by the mother. In this particular case paternity is well established in a few different ways. Until a law or a court says a father doesn't have certain rights, he does. Those rights may be in dispute, but that is what the court is for.

Then, he must petition a court to recognize and honor his paternity and custody. If he fails to do same, his custody is dependent on the whims of the unwed mom.
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This has more to do with a situation in which paternity is in dispute and the parents do not live together, in which case I would agree dad needs to petition the court for access to the child if mom is not cooperative. However if mom does allow him access to the child I again ask under what authority does anyone take the child away from the father without a court order?

An unwed dad, unlike an unwed mom, has no inherent parental rights. He must take affirmative legal steps to obtain same. Mom is vested with such rights because she bore the child to term. It is, initially, an all or nothing proposition.
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Virginia's Title 20 only establishes the mother as a parent by virtue of giving birth and says nothing of custodial rights. There is nothing in the law that gives her any inherent rights greater than the father's. If it is a matter of case precedent then that still does not get addressed UNTIL they get to court.

There appears to be nothing at all in the law that is enforceable with any kind of consequence if unwed parents have a custody dispute between themselves with no court order in effect. Absent abuse or any other defined criminal act the only tool to remove the child from dad's custody is a court order. Dad can do what he wants with his kid until a judge tells him he can't.

I get that dad needs to petition the court to establish everything when there is a dispute, but prior to that, absent the custody/visitation order there is nothing for him to violate and nothing for anyone to enforce if he refuses to return the child to mom.

Since I can't find any statute in support of mom's inherent rights and nobody is able to reference it in ANY state, I am pretty confident that it does not exist. Prior to court intervention we have a free for all between the parents and NOBODY has the right to intervene but a judge. All the presumptions of custody mean nothing at all and are unenforceable until the court puts it in effect case by case when petitioned by the parents.
 
1dreastman said:
So here is my last question about this. In Virginia if my daughter, as an unwed mother, petitions the court for custody, what is the procedure, specifically, does she petition and get custody paperwork the same day, does there have to be a hearing where both parties have to attend, and if so how long does it take to get cutody as the mom??
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She simply needs to go to the family court and tell the clerk she wants to file for child custody. The clerk will be able to direct her to the proper forms and can advise her regarding procedure.

Yes, when she petitions she should be able to get a temporary order the same day which covers the time between then and the scheduled hearing. At the hearing a new order will be issued based upon the information presented at that time. No, both parties do not have to attend, but if one of them doesn't they pretty much are at the mercy of the other. The parents should be ordered to sit down with a mediator to try and work things out outside the courtroom. If they can come to an agreement then the judge should sign off on it. If they can't come to an agreement then the judge will have to sort things out.

Mom will be awarded custody as soon as she files. The father would then have to prove she is unfit or otherwise not capable of caring for the children and prove that he is capable. The whole thing will likely last a minimum of a few months to work its way through court unless mom and dad come to an agreement right away and there is no dispute. The more of a dispute there is then the longer it will go.
 
Ok everyone, I think we all agree there are as many opinions and thoughts about this situation as there are states in America. I thank each and everyone of you for your input, opinions, and thought provoking responses to me and each other.

I had so much information from each side, I decided to call the court and get their take on this issue. So this is what i found out...

My daughter petitions the court for custody, there is NO TEMPORARY CUSTODY awarded to mothers in VA. She has the child and takes care of the child, but should the father decide he wants to keep the child he can and my daughter can do nothing about it prior to their custody hearing which would be at least 1 month from now, and sometimes longer. Should he take the child and not return her and my daughter thinks he is going to neglect, abuse etc she can then call the court for a possible emergency hearing or she can call the Social Service Hot Line. DSS have "safety plans" they can implement, again if she believes there is neglect or abuse.

So between the time she files and they go to court, this child is at the mercy of good or bad parents and NO ONE has custody of her. What I want to know is, Where is the protection for this child who has no temporary custody in place and whatkind of chaos has this child or anyother child got to go through because of it. To me this is absurd that there is no protection for a child UNTIL after something happens to them. With all the child protective laws in place, whether federal or state, I am just apalled
 
1dreastman said:
What I want to know is, Where is the protection for this child who has no temporary custody in place and whatkind of chaos has this child or anyother child got to go through because of it. To me this is absurd that there is no protection for a child UNTIL after something happens to them. With all the child protective laws in place, whether federal or state, I am just apalled
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Well it isn't that nobody has custody- it just hasn't been sorted out by a court to say who gets the kid and when, and who has the say-so for doing whatever.

If there was an emergency situation then there would be lots of help. You have said nothing at all that suggests there is a need for an emergency order... although if mom's move was imminent and dad requested emergency custody to prevent the child from leaving the state I would think that might suffice.

Nobody has to wait for something to go wrong. Any time in the last 3 years either of the parents could have got this ball rolling.... they just don't think to do it until it the worst times.
 
irish223 said:
This blog by a Virginia Beach attorney disputes the court employee's 'advice':

http://www.virginiabeachdivorceblog.com/2011/06/protecting-your-rights-as-a-father-in-virginia.shtml
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That doesn't dispute the court employee's statements. Those comments indicate procedure once court proceedings have begun, and reasons why a father might have to initiate them. Prior to anyone going to court none of it has any relevance. As is indicated, if mom has the child she does not have an obligation to hand it over to dad without a court order saying so. The same is true for dad if he has the child and does not want to hand it back over to mom.
There is no authority for anyone to take the child and give it to mom just by virtue of her being mom. Mom needs a judge to say so.
 
mightymoose said:
Well it isn't that nobody has custody- it just hasn't been sorted out by a court to say who gets the kid and when, and who has the say-so for doing whatever.

If there was an emergency situation then there would be lots of help. You have said nothing at all that suggests there is a need for an emergency order... although if mom's move was imminent and dad requested emergency custody to prevent the child from leaving the state I would think that might suffice.

Nobody has to wait for something to go wrong. Any time in the last 3 years either of the parents could have got this ball rolling.... they just don't think to do it until it the worst times.
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Correct, the court hasn't appointed custody yet, and they say there is no such thing as temporary custody until the hearing, so in the interim, her health and welfare hang in the balance and hope there is no emergency situation, which yes, there would be lots of help for, but again, there is no protection for the child until after the court hearing or the child has to go through some sort of tug of war games.

Yes I guess the parents could have gotten this ball rolling, but petitioning the court for custody while living within a family relationship unit, sounds like saying, "I don't think this relationship is going to last, so while we are still together, I'm going tofile for custody."

Mom's move will probably happen sometime down the road, but not in the next 6 months anyway.
 
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