If You’re Not the Father, Are You Still Responsible for Support?

Virginia laws impose a legal obligation on parents to support their children. In fact, parents living in Poquoson who fail to provide for the support of their children who are younger than 18 years of age may be charged with committing a criminal offense. The challenge for Yorktown family law attorneys, particularly in situations involving unmarried couples, may be in determining the identity of the father.

Mistakes may occur that lead to the wrong person being identified as the father of a child and ordered to pay child support. Once the truth becomes known, a Newport News man erroneously ordered to pay child support cannot simply stop making payments and should consult with a Yorktown child support attorney.

Establishing Paternity

The law presumes that when a married woman gives birth, she and her husband are the parents of the child and equally share the support obligation. Divorce attorneys understand how the same presumption applies to married couples that separated or were divorced prior to the birth of the child as long as the separation or divorce occurred within 300 days of the birth.

If the parents of a child are not married, the identity of the father can be determined in ways other than through a presumption of paternity. Williamsburg courts may consider evidence of the following in order to establish that a man is the father of a child:

  • He cohabited with the child’s mother for the 10-month period immediately preceding the birth of the child.
  • He consented to his name being entered on the child’s birth certificate as the father.
  • He allowed the child to use his surname.
  • He acknowledged in open court that he was the father.
  • He listed the child on an income tax return as his dependent.
  • He signed a sworn acknowledgment of paternity.
  • He took a DNA test, and the results statistically prove he is the father.

As happens with Virginia child custody laws that recognize orders made in other states deciding the issue of custody, an order from another state establishing that a man is the father of a child will be legally binding on judges in the commonwealth. Once paternity has been established, courts may order the father to pay child support.

Proving That a Man is Not the Father of a Child

Situations may arise when someone identified as the father of a child and ordered to pay child support may later learn that he is not the parent. For example, a support order is entered against a man who lived with a woman and consented to his name being included on the birth records as the child’s father. He pays child support under a court order.

A DNA test completed several months later reveals that the Hampton man is not the child’s father, so he stops paying child support. Had he consulted with a child support attorney when he got the results of the DNA test, he would have been told to petition the court that issued the support order asking that it be terminated.

Unilaterally stopping the child support payments violates a court order. At the very least, the person violating the order would be liable for payment of any arrears accruing from the date the payments stopped regardless of the existence of evidence disproving paternity.

Parents paying child support under a court order and find out they are not the father of the child must petition the court for a modification of the order in order to be released from the obligation to pay. The law in Virginia imposes strict limits on retroactive modification of child support orders. A parent who waits before filing a petition requesting modification could be held responsible for the payment of support up to the date the other party was served with notice of the requested for modification.

The same rule requiring a parent to file a petition with a court to modify a child support order also applies to someone married to the mother at the time a child is born. The presumption that a child born to a married couple is the legitimate child of both of them can be challenged.

For example, the results of a DNA test disproving the husband as the child’s father would rebut the presumption of legitimacy, but it does not automatically absolve the husband of the obligation to pay child support as ordered by a judge. The person needs to speak with a divorce attorney about modifying the order.

Consulting Experienced Family Law Attorneys May Help

People in the Hampton Roads region in need of divorce attorneys or a child support attorney have relied upon the knowledgeable family law team at the Denbigh Law Center since 1982. Contact them today by calling 757-877-2244 for trusted advice and outstanding representation in complex paternity or child support matters.