Birth Certificate and Virginia Child Custody

Posted on Jul 12, 2023 by Katie Carter

After I had my babies, I remember being shocked at how quickly personnel from the hospital came by to make sure that I had arranged to pay my bill, that I knew it wasn’t wise to shake a baby, and to fill out the information needed to complete the birth certificate.

I never saw a hospital newborn photographer, and nailing down the lactation consultant was nearly impossible.  But, they heckled me about payment arrangements – before they even had an itemized bill or submitted anything to my insurance company! – and they made darn sure I filled out the birth certificate paperwork.

I mean, I get it.  It’s important for vital statistics that a complete and thorough record of every birth is recorded.  But, at the time, it felt very pushy.  What if you don’t even know what you’ll name your baby yet?  All sorts of things happen in the hospital in the hubbub surrounding a birth, and it’s probably more normal than you think to not know which way is up.

Mistakes happen.  And relationships can be messy.  I’ve seen a couple of different basic scenarios: either there’s no father listed or the wrong person is listed as the father.

I mean, obviously, most people have birth certificates that reflect the right person as the father, but these aren’t the ones we’re concerned with today.

A birth certificate means that the father listed is the assumed father.  (The mother isn’t assumed; she just gave birth, so we know with pretty complete certainty that she’s the mother.)  That means that he can file for custody and visitation, but, then again, so can anyone.  And, if you don’t object, the court would move forward with determining custody, visitation, and/or child support in your case – but, if you do object, then you’ll need to get a paternity test.

We don’t do paternity tests in every case.  But, if there’s an issue, we definitely do.  After all, we need to know for sure that both parties have rights to the child(ren) in question in order to determine custody, visitation, and/or child support.

What if no father is listed on the birth certificate?

Obviously, there’s a father.  It doesn’t matter if no father is listed.  If dad does come around eventually – whether immediately or at some point way into the future – he could file for custody and visitation of the child.  Before he’d get any parenting time, though, a paternity test would be ordered.  If he’s found to be the father, the court will apply the best interests of the child factors (likely with the help of a Guardian ad litem) to determine what kind of custody and/or visitation arrangement would be best.

If he’s not the father, he’ll have a much harder time of it.  Non parents don’t really get custody and/or visitation of minor children very often.  It can happen, but they have to meet the harder actual harm standard (as opposed to the best interests standard that applies between biological parents).  It’s not likely that a non parent ex would get parenting time.

What if the wrong father is listed on the birth certificate?

Well, if the wrong father is listed on the birth certificate, things are a little messy.  But what really matters is who the biological parents are – not who the assumed father is.

My current partner is listed as the child’s father, but my child’s biological father is petitioning for custody and visitation.

Your child’s father can petition for custody and visitation, and he will very likely ask for a paternity test at the outset.  He can do this.

If the paternity test shows that he is the father, he could – and likely would – get some parenting time.  The court would use the ‘best interests of the child’ standard, and likely a Guardian ad litem would be involved to make a recommendation about what he or she feels would be best for the child under the circumstances, to make a decision.

It doesn’t matter that your current partner is listed.  He is not the biological father and, as a result, doesn’t actually have any rights in this scenario, even if he has acted as the only father the child knows for a period of time.

My soon-to-be ex partner is listed as my child’s father (even though he’s not) and is threatening to take me to court for custody if I leave him.

Custody is the string that tugs at a mom’s heart, right?  Many an abusive father has found that the quickest and easiest route to get to their partners is through her children.

If your current partner is NOT the father, but was listed on the birth certificate, and is threatening to use this against you to get custody and visitation of your child, you’re not alone.  But, still – we go back to the paternity test.

He can file for custody and visitation.  But, again, we’re back to the paternity test, which he will not pass.  He does not have rights to this child, and he will not receive parenting time unless he can make a coherent argument that the child will suffer actual harm without continuing the relationship.  (Spoiler alert: this is a really high bar to meet!)

Can I correct the birth certificate?

This really isn’t a family law question.  I have nothing at all to do with birth certificates, and we don’t modify them by agreement or through litigation.  But, yes – you can correct errors on them.  You’ll want to look up the procedure in Virginia, or even call and talk to someone.  But, yes, you can get it fixed.  And, in all likelihood, you should.

Hey, accidents happen.  Families are messy.  If you put the wrong name in on the birth certificate – or didn’t put any name at all – it’ll be okay.  I mean, probably you were hoping that it wouldn’t come to any of this at all, but you can at least rest easy with the assurance that only an actual biological father will be able to come in and try to claim parenting time.

If you’ve got issues with your child’s biological father – like that he’s mentally ill, a substance abuser or addict, that he’s abusive or neglectful, or something else – you can explore the resources we have related to custody and visitation cases where those issues are presented, but the actual birth certificate itself isn’t likely to hold you up too much.

For more information, or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.