Fathers' Rights and Paternity

Paternity Tests and Fathers' Rights

Paternal rights have become increasingly important in divorce and custody cases, as fathers want a role of involvement within their child’s life. Father’s rights include parenting time with his children, the right to consultation before adoption, and the right to time off from work to raise the child.

Virginia requires clear and convincing evidence to establish paternity.

Virginia Code, § 20-49.1, et seq., governs proceedings to determine parentage.  To establish parentage, an individual must prove paternity by clear and convincing evidence.  Clear and convincing evidence is the degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases. It does not mean clear and unequivocal.

Evidence of parentage may include, but is not limited to, the following:

  • Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception;
 
  • Medical or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts. If a person has been identified by the mother as the putative father of the child, the court may, and upon request of a party shall, require the child, the known parent, and the alleged parent to submit to appropriate tests;
 
  • The results of scientifically reliable genetic tests, including blood tests, if available, weighted with all the evidence;
 
  • Evidence of the alleged parent consenting to or acknowledging, by a general course of conduct, the common use of such parent's surname by the child;
 
  • Evidence of the alleged parent claiming the child as his child on any statement, tax return or other document filed by him with any state, local or federal government or any agency thereof;
 
  • A true copy of an acknowledgment pursuant to § 20-49.5; and
 
  • An admission by a male between the ages of fourteen and eighteen pursuant to § 20-49.6.
 

In Virginia, there is no case law that specifically states the burden of proof required to prevail on a petition to disestablish paternity.  However, based on the requirement for clear and convincing evidence to establish paternity, the court is arguably likely to apply the same standard to disestablish paternity in the event that the burden of proof is challenged.  Establishing paternity is arguably just as important and high-stake as disestablishing paternity. Thus, the court could logically conclude that the same standard should apply.


Special thanks to Attorney Mallory Brennan for editorial and writing assistance with this article.
H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg