In Virginia, when a child is born during a marriage, and the parties have been married for at least 10 months preceding the birth, the husband is presumed to be the father. Commonly called the “presumptive father,” this title bears the same legal weight as being the “legal father” when it comes to child support.
If the parties were not married for at least 10 months preceding the birth of the child, the husband can still acknowledge paternity, such as by signing the birth certificate.
However, if the presumptive father believes that a child is not actually his, there are steps he can take to disestablish paternity. Pursuant to Virginia Code § 20-49.10,
An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination.”
Sounds simple enough. But is it possible to contest disestablishment even if a genetic test says the child is not the presumptive father’s? In Virginia, the answer is yes.
Virginia Code § 20-49.10 also states that “[a] court shall not grant relief from determination of paternity if the individual named the father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.”
The latter two items are fairly straightforward. The biggest inquiry in contested cases will often come down to the first one: whether the presumptive father “acknowledged paternity knowing he was not the father.”
Virginia Code § 20-49.1(B)(2). states that a voluntary acknowledgment of paternity is “binding and conclusive” unless a subsequent judicial proceeding finds that the acknowledgement resulted from either fraud, duress, or a material mistake of fact. Essentially, that it was not actually knowingly done, or it was done under threat of harm.
The statute does not define what constitutes a “material mistake of fact,” but recently the Virginia Court of Appeals held that the ordinary and plain meaning of the language should be used when applying this statute to cases. With that in mind, in Matzuk v. Price, 70 Va. App 474, 482 (Va Ct. App. 2019) the court held that because the man was not entirely sure whether or not he was the biological father when he signed the birth certificate, his acknowledgment was based upon a material mistake of fact and was therefore not binding or conclusive. Because he did not acknowledge paternity knowing he was not the father, and later genetic testing proved he was not the father, the court disestablished paternity.
Rights and Obligations After Disestablishment
What are the remaining rights and obligations of the presumptive father after disestablishment of his paternity? These can be broken down by two categories: (1) child support and (2) custody and visitation.
Child Support
If a person is disestablished as the father, they no longer have an obligation to pay child support for the minor child. However, this cessation of responsibility only goes back to the date that the father filed his petitions to disestablish, and if he owed any arrears at that time, that obligation continues to exist. For more information, see Establishment and Disestablishment of Paternity in Virginia.
Custody and Visitation
Aside from child support, disestablishing means that the presumptive father loses any legal rights and standing he had with the child. He no longer has an inherent constitutional right to custody and visitation with the child. Instead, under Virginia Code § 20-124.2, he can only petition the court as a “person with a legitimate interest” for custody or visitation rights.
Even if he attempts this avenue, not only does he have to prove by clear and convincing evidence that it is in the best interests of the child to allow some form of custody or visitation, pursuant to Virginia Code § 20-124.3, but also if both legal parents object (assuming someone else has established paternity rights), he also has to prove that there would be actual harm to the child’s health or welfare without some visitation schedule with him in place. Therefore, the burden is much higher for the disestablished father to earn court-ordered time with the child.
If you are involved in a disestablishment of paternity case, be sure to discuss your options with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with every type of paternity, custody and support matter in the courts of Northern Virginia. Contact us to schedule a consultation today.