Who Has Custody of a Child When the Parents Are Not Married?

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Key Takeaways:

  • Virginia custody law does not distinguish between mothers and fathers, except when the biological father’s name is not on the birth certificate.
  • A father can petition for child custody once they have established paternity of the child.
  • Child custody includes the right to decide where the child lives and make important decisions for the child.
  • A parenting plan must be in the “best interests of the child.”

If you have a child out of wedlock, your custody rights might depend on which parent you are. You need parental rights to build a relationship with your child. Fighting for custody in a divorce is difficult enough, but custody disputes can also occur among unmarried parents. You may be able to work out a custody arrangement with the other parent. If not, you must get a court order establishing custody of the child. The process can be even more complicated if you are not on the child’s birth certificate. You might need to establish proof of paternity through a DNA test before you can seek child custody rights.

Are you an unwed parent worried about the custody of your child? Continue reading to learn more about your legal rights. You can also call our Northern Virginia family law firm to see how our child custody attorneys can assist you in your situation.

Different Types of Child Custody in Virginia

Virginia law has two types of custody rights: legal custody and physical custody. The parents may share both types of custody rights, commonly known as joint custody. In some cases, one parent might have primary physical custody and sole legal custody, while the non-custodial parent has visitation rights.

Legal Custody

Legal custody involves the right to make important decisions about a child’s health, education, and well-being. If parents have joint legal custody, they must consult with each other on major decisions like school or medical treatment for their child.

Physical Custody

Physical custody involves the right to determine where a child will live. Parents with joint physical custody might try to split parenting time as close to 50/50 as possible or at least give each parent a reasonable amount of time with the child.

How Is Child Custody Usually Determined in Virginia?

A mother and father arguing in front of their daughter

Numerous factors may affect the outcome of a child custody case. If the parents can reach an agreement that includes a parenting plan, they can present it to a family court judge. The most important factor is whether the agreement is in the “best interests of the child,” meaning that it meets the child’s needs and will have a positive effect on the child’s life.

Virginia law makes no distinction between a child’s mother and a child’s father concerning custody rights, provided that the father has established his paternity. If a court decides on custody rights, the following are some of the factors it must consider:

  • The child’s age, health, and development;
  • Each parent’s age and health;
  • The parents’ relationship with each other;
  • Each parent’s involvement in the child’s life;
  • The child’s needs, and each parent’s ability to meet those needs;
  • Each parent’s willingness to support the child’s relationship with the other parent;
  • The child’s preferences regarding custody; and
  • Any history of domestic violence by either parent.

What Rights Do Parents Have If They Are Unmarried?

While Virginia custody laws do not distinguish between parents based on gender in final custody orders, custody rights can be different at first for unmarried couples.

Father’s Rights

Unmarried fathers have no parental rights if their names do not appear on the child’s birth certificate. To add a father’s name to a birth certificate, the father must prove that they are the biological father. If the other parent agrees, the father can sign an acknowledgment of paternity. A father in a disputed paternity case must take a paternity test. Once the father’s name is added to the birth certificate, they can petition for custody rights.

Mother’s Rights

Unmarried mothers essentially have sole custody of the child at first if the biological father is not listed on the birth certificate. The biological father must petition a court to establish paternity to obtain custody rights.

Why Work With ShounBach

The family law attorneys at ShounBach have more than four decades of experience representing people in a wide range of legal matters. Our law firm is AV-rated by Martindale-Hubbell and has been recognized in Super Lawyers® and the U.S. News list of Best Law Firms.


“Hayden is professional, thorough, engaging, and responsive. His attention to detail is remarkable, and he well represents both practical and optimum paths forward at all times. Highly recommend!” — JT

Frequently Asked Questions About Child Custody

If Both Parents Are on the Birth Certificate But Not Married, Who Has Custody in Virginia?

Once a biological father has established paternity, both parents can claim custody rights. They can work out a settlement agreement and parenting plan, or they can submit their custody dispute to a family court to decide.

What Not to Say During a Custody Battle?

A custody battle is about determining which parent can protect the best interests of the child. It is not the time to bring up petty complaints that do not affect the child’s well-being. A court will want to hear about issues that could endanger the child, such as:

  • Domestic violence;
  • Substance abuse;
  • Unsafe living conditions; or
  • Illegal activity.

A court is not likely to care about other disputes between the parents or a parent’s excuses for their bad behavior.

Emotions can run high during a custody dispute. People are fighting over access to their children. This can make anyone angry and on a short fuse, but it is important to be respectful and watch your tone, especially in front of a judge.

Other tips about what not to do in a child custody case include:

  • Don’t lie in court;
  • Don’t withhold your child from the other parent;
  • Don’t refuse to negotiate or participate in the legal process;
  • Don’t bad-mouth the other parent in front of your child; and
  • Don’t ignore court orders.

What Does Establishing Paternity Do?

A father and son playing together

Establishing paternity gives a biological father custodial rights to the child and the opportunity to potentially have a relationship with them. It gives the father the legal right to petition for a court order that sets up custody rights, a parenting plan, and parenting time.

Paternity also means that a court can order child support. This typically means making periodic payments to the other parent. It can also mean paying for insurance to cover the child’s healthcare or taking out a life insurance policy with the child as the beneficiary. A court can backdate child support to when the petition for child support was filed.

Unmarried and Worried About the Custody of Your Child? Consult With Us.

If you have questions about child custody as an unmarried parent, the Virginia family law attorneys at ShounBach are here to help. We handle a wide range of family law matters. We can assist people throughout Northern Virginia from our office in Fairfax. Contact us today at 703-222-3333 or through our online contact form to find out what we can do for you.

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Written By ShounBach

Since 1975, ShounBach has served the Northern Virginia community. Our team brings over 200 years of combined legal experience and has grown to be one of Virginia’s largest family and estate law firms.

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