Legal Question in Family Law in Virginia

Does an unwed mother have sole custody by default?

What kind of custody do I have? Single mother, never married. Paternity has been established and the father pays support. The father does NOT want custody or visitation. He has no official custody (No court order). Do I? I can't imagine having to file for custody. Is there a code or law that states an unmarried mothers custody of child? Do all states have codes or laws for unwed mothers and custody?

Asked on 3/10/05, 10:51 am

2 Answers from Attorneys

Michael E. Hendrickson Attorney & Counsellor at Law
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Re: Does an unwed mother have sole custody by default?

As the child's natural mother, the law already presumes your right to full legal as well as physical custody of the child.(The fact that the child was born out of wedlock is irrelevant.) These rights would only be subject to review and possibly alteration if another person having appropriate standing from a legal perspective, such as the father of the child, were to petition for custody and which would necessarily require the court to issue a formal decision as to which parent should have what with respect to their individual custodial rights to the child.

Given the situation which you've described with respect to the father, it's unlikely that a court would award the father anything more than a limited right to visit the child if he were to

initiate a petition for such and it would be very unlikely that he would share in any form of legal custody.

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3/10/05, 11:05 am
Fred Kaufman Fredrick S. Kaufman, Esquire
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Re: Does an unwed mother have sole custody by default?

Good Question! Going to court on a custody case is not normally about giving it to someone who doesn't already have it - it's about taking it away from someone who already has it. Normally man and wife both have 100% custody of thier children (sort of like the way they own their house).

In the case of unmarried parents, there is no presumption for the father unless he is on the birth certificate or otherwise officially acknowledged his paternity. I do not have enough facts to advise you.

If the father is acknowledged or otherwise on the birth certificate, then you both have full custody and have full rights to the child no matter the visitation practices or the payment of child support.

There is no special rule for unwed mothers other than in the majority of the cases the man is not listed on the birth certificate and thus has no default rights.

If this man has any rights at all and if you want to take those away or restrict them, then by all means file a custody case in the city or county where the child lives.

Good luck.

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3/10/05, 2:47 pm

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