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 Virginia Questions and Answers for Noncustodial Parents: A question and answer resource on paternity establishment and child support Acknowledgments This handbook was produced as part of a generous grant from the Charles Stewart Mott Foundation. With additional support from the Ford Foundation and Public Welfare Foundation.
All of the ideas, opinions, and legal interpretations presented in this handbook are explicitly those of the Center on Fathers, Families, and Public Policy. It should not be assumed that the foundations providing support for this work share them. The production of this handbook would not be possible without the help of many individuals who took the time to read and comment on earlier drafts. Ultimately, any errors in interpretation of the laws of Virginia are solely those of the author. In addition, the Center on Fathers, Families, and Public Policy made the final decision as to whether to include or not include things in this handbook.
The Center on Fathers, Families, and Public Policy would like to thank Total Action Against Poverty for helping to arrange a focus group to look over this material. Most important the Center would like to thank the fathers who participated in this focus group. These fathers include Rodney McGeorge, Edward Dargan, Robert W. Dollman Jr., Dwight M. Reynolds Jr., Eric T. Painter, Terry McGhee, Marcus Johnson, and Erik Walker. 
Table of Contents The Top Ten Things You Should Understand About The Virginia Child Support System Questions Surrounding: Paternity Establishment
Child support
Introduction This Question and Answer handbook is based solely on the laws of Virginia and is only accurate for the state of Virginia. It was produced on February 7, 2002, and does not reflect any changes in Virginia law since that date. This handbook provides only general legal information surrounding the Virginia child support system. It is not advice about your particular legal situation. If you can afford it you should consult an attorney for assistance with your particular legal problems. Every day in the United States, thousands of children are born to unmarried parents. Most of these parents lovingly welcome their children into their lives. However, the problems and concerns faced by unmarried parents who are also poor are particularly complicated and sometimes can seem hopeless. This handbook will highlight the legal processes involved in paternity establishment and child support enforcement. You should read this handbook with the understanding that any individual faced with the situations outlined here would benefit greatly from the assistance of a legal professional. The handbook can be read cover to cover but if you have a specific question you can just jump to the question that provides the answer for which you are looking. Legal Services Most people would, if they could afford it, hire a lawyer to handle matters as complicated and serious as establishing paternity and setting child support orders. However, the reality is that many low-income, unmarried fathers cannot afford such services. The Center on Fathers, Families, and Public Policy developed this handbook as a source of information for low-income fathers and for social service professionals who are trying to help explain the paternity establishment and child support enforcement systems. This handbook does not replace the services of an attorney to help you with your legal problems. The Top Ten Things You Should Understand About The Virginia Child Support System
Paternity Establishment What is meant by the word "paternity"? Both legally and biologically, the word paternity means the identity of the father of a child. Except in rare circumstances, when a mother gives birth to a child, she is considered to be the legal mother of that child. Every child also has a biological father. But, if you were never married to the mother of the child, Virginia will not treat you as the father of the child unless legal paternity is established. How can the paternity of a child be established? In Virginia there are three primary ways to establish paternity for a child born to a mother who has never been married. Both parents can sign a legal document to establish the paternity of the child. This document is called an Acknowledgment of Paternity. Another way to establish paternity is by using the services of your local child support office. Finally paternity may be established through a court proceeding.
If you are absolutely sure that you are the father of the child, and the mother agrees, you can both voluntarily acknowledge that you are the father of the child. While the baby is still in the hospital, the mother and the father (if he is present) are offered the opportunity to do this. In addition to the opportunity to acknowledge paternity voluntarily at the hospital, Virginia provides opportunities for acknowledgment at a later date. If you use the Acknowledgment of Paternity, you will still need to go to court if you wish to have court-ordered visitation with your child. You also will not have the opportunity to request a genetic test (DNA test) to be absolutely sure that you are the biological father of the child.
If a mother or the state claims that you are the father of a child in a legal proceeding, and you are not sure, you probably should take a genetic test to make sure you are the biological father. Since the 1980s, very accurate genetic tests (DNA tests) have been developed. A genetic test is the best way to be absolutely sure that you are the biological father of the child. If you are not sure that you are the father, and want to be sure, you should insist on a genetic test. What if, after signing the Acknowledgment of Paternity, I have reason to believe I am not the father? Even if you sign an Acknowledgment of Paternity and you later come to believe that you may not be the father, there are ways for you to cancel your signing of the form. However, this is most easily done within 60 days of signing. After 60 days pass, the requirements for canceling the Acknowledgment of Paternity are extremely difficult to meet. Within 60 days of either you or the mother signing the form, there are specific requirements to cancel it. You must not have been a party in a court case concerning the child. Also you must sign a second form, called a Rescission form. You may pick this rescission form up at the local health department of the department of vital records. It is important that you follow all of the instructions on this Rescission form. It also is important that if during this 60-day period you have a question about whether you are the father you seriously consider using this Rescission form.
There is also a second possibility for you to cancel the Voluntary Paternity Acknowledgment. This second possibility requires three things for you to cancel. First you must be part of a court proceeding for the child. Second this court proceeding must happen within 60 days of both parents signing the Acknowledgment of Paternity. Third you must ask the court to cancel the Acknowledgment of Paternity. 60 days have passed since the baby's mother and I signed the voluntary Acknowledgment of Paternity form. What can I do now that I realize that I may not be the biological father of the child? After 60 days it is difficult to make it so a court or child support enforcement will not treat you as the father of the child. If you want an order which says you are not the father, you need to go to court. You will have to file a lawsuit to challenge the voluntary Acknowledgment of Paternity. To challenge a voluntary acknowledgment you must prove at least one of three things. You must prove that the document was signed under conditions of:
Successfully making it so you are not legally considered the father will likely require the assistance of an attorney. What if a woman says I am the father of her child, but I believe that I am not the father? If you have not signed an Acknowledgment of Paternity and you were never married to the mother of the child, there will have to be legal action for you to be declared the father. Either a court or the child support office can determine whether or not you are the father of a child. Some of the people that may attempt to establish that you are the father include the mother, the child, or the local child support unit. You will receive a legal document that claims you are the father of a child. It is very important that you read and try to understand everything in this document. This legal document will have on it a date and time for you to appear. It is important that you appear at this hearing. If you do not appear, the court will proceed with the case to determine whether you are the father. This will likely result in you being declared the father of a child and you will likely owe child support. I received a legal document that claims I am the father of a child. It tells me to appear at a child support office. I thought only a court could declare me the father of a child. Can a child support office have a hearing to declare me the father of a child? Yes. If the hearing is being done at the child support office there are two ways for you to be declared the father of a child. The first is if you voluntarily sign an Acknowledgment of Paternity. The second is if genetic tests are taken and the results of the genetic test indicate that there is a 98 per cent or greater chance that you are the father. If there is a positive DNA test or you sign a voluntary acknowledgment; the child support agency has the power to issue an order declaring you the father. I received a document that claims I may be the biological father of a child. Should I just not go to the hearing because I know I am not the father? No. You should go to the hearing. At the hearing, you should say you do not believe you are the father. You should insist on genetic test (DNA test). Perhaps the best way to prove you are not the father is to get genetic test (DNA test). If you do not appear at the hearing, this can result in an order declaring you the father of the child. This order is called a default order and it will include an order for you to pay child support. I received a legal document that claims that I may be the biological father. Should I not go to the hearing because I know that I am the father? You should go to the hearing. A paternity hearing likely will determine many things besides that you are the father of a child. For instance the hearing will likely result in an order for you to pay child support. In addition, it can include orders for you to have visitation with your child. If you do not appear, you lose the opportunity to tell the court why you should have visitation with your child. How important are genetic tests (DNA tests) in paternity cases? Genetic test (DNA test) generally can show that someone is not the father or indicate with a great certainty that someone is the father. If requested by any party, genetic tests are a big part of any determination of whether or not you are the father of a child. If the genetic test indicates that there is a 98 percent or higher chance that you are the father, you will be declared the father. Thus, the results of the genetic test will most likely determine whether you are the father. Do I have to put forward the money to initially pay for genetic tests (DNA tests)? It depends on whether a court or the child support agency is determining the paternity of the child. If a court is determining the paternity of a child, the party requesting a genetic test pays for the cost of the test. The only exception is if the party requesting the genetic test is extremely poor (indigent). Then after the determination of paternity, the court may charge either or both parents for the cost of the genetic test. If paternity is being determined at the child support office, the child support agency initially pays for the genetic tests. However, if you are found to be the father of the child the child support agency will order the father to pay back the cost of the test. Why would a mother force me to go through the legal process of establishing that I am the father? Having a legal determination of who is the father of a child offers many benefits to the parents and the child. For instance, legal paternity establishment is necessary to get court-ordered child support. In addition, you can only ask a court for visitation with your child if paternity has been established. In some cases the government requires the mother to help the state establish the identity of the child's father. She must cooperate in helping Virginia to establish who is the father of the child, or the government may refuse to give her public assistance. In addition, any child support that you pay will not go to the mother but to the government. The government may give her up to $50 each month of this child support. What if I believe that I am a child's father, but the mother denies me access to the child? For you to have court-ordered visitation you must be declared the father of the child. If you have not been declared the father, you must give (file) legal documents to the court to ask that you be legally determined to be the father. These legal documents are to start a paternity action. You can also apply for services through the local child support enforcement unit. After you have applied for services, it is possible that they will take the lead to start a paternity action. What are some things I should be aware of after I start a paternity action? As part of the paternity action, you can request a genetic test (DNA test) of the mother, the child, and yourself. If you request a genetic test, each of you will be ordered to have the genetic test taken. If you are ordered or the parties agree to a genetic test, the results will be a part of the paternity proceeding. If it is determined that you are the father of the child and you are the non-custodial parent, you will owe child support. Once paternity has been established, the court may also consider the issues of visitation and custody. If you desire to have visitation or custody it is important that you ask the court to write a visitation order that clearly states the dates and times when you can see your child. As part of a paternity action, whose interest do the various lawyers represent? If you can afford one, you have the right to be represented by an attorney at any portion of a paternity proceeding. If the mother can afford one, she also has the right to be represented by an attorney at any portion of a paternity action. If the child support agency is a part of the case, it will also have an attorney. The child support enforcement attorney does not represent you or the mother; he or she represents the interest of the state of Virginia. What are some of the legal benefits of establishing paternity for an unwed father? Once paternity has been established, a man becomes the legal father of that child. He has all of the rights and responsibilities of a man who had been married to the mother. The child will be eligible for government dependent benefits and inheritance rights from you. In addition, your name can be listed on the birth certificate as the father of the child. There is no guarantee of the right to custody or visitation, but a father has the right to ask a court for custody or visitation. If you sign an Acknowledgment of Paternity, you may go to court to ask for custody of or visitation with the child. If paternity is established by the child support office, there will need to be a separate legal proceeding if you would like visitation with the child. If you establish paternity through the court system, you may ask for visitation with or custody of your child. The court may not grant your request for visitation or custody if the court determines there is evidence that such an arrangement would not be in the child's best interest. You should ask the court to make an order that specifically says which days and hours you can be with the child. What are some of the legal consequences of establishing paternity for an unwed father? If you are declared the legal father of a child and the mother has physical custody of the child, you will have to pay child support. You may also owe some of the costs of the mother's pregnancy and confinement, the child's medical expenses or medical insurance, cost for the mother to obtain child care for when she works, child support back to the time of the mother requesting support from the court, and other costs. Child support How do I make my child support payments? Normally your employer directly takes money from your paycheck for child support. Your employer then gives it to the child support agency support collection unit. Your employer may charge up to five dollars every month for doing this. Is there another way to make child support payments? You should make your child support payments through the method mandated by the court order. If you are unemployed, self-employed, or cannot make a payment through having money taken directly through your check, you may make your payments through another method. You should make payments payable to the Treasurer of Virginia, and mail to P.O. Box 570, Richmond Virginia, 23218-0570. You should include your social security number on all payments. For how long do I have to pay child support? In Virginia, parents paying child support generally pay support for a child until that child is 18. You may be ordered to pay child support until the child reaches 19 if three conditions are satisfied:
How does the court decide how much child support I should pay? Virginia has established guidelines (a formula) to determine the amount a non-custodial parent should pay for child support. This support amount is partially based on the financial situation of each parent and how much time you spend with the child. A parent may ask the court to award an amount greater or less than the guideline amount. To do this you must convince a court that the guidelines are unjust or inappropriate in your case. If a court believes you could make more money, you may get a child support order that is not based on your actual income. Instead the court will base your child support on an amount that it believes you could make. I lost my job or never had a job. Why did the court order me to pay child support when I did not have a job? A court may base your child support obligation on the amount that the court believes you could make if you wanted to. To do this a court must believe that you are voluntarily not working. I pay my child support but the mother claims that she never gets any (or very little) of the money that I send. What is happening? In some cases the mother does not receive most of the child support that you pay. If she receives certain government assistance (welfare), the government will keep most of the child support. If the amount you owe in child support is less than the amount of government assistance check, she will only receive up to 50 dollars per month of the child support you pay. Can an employer discriminate against me because I owe child support? No. By law your employer cannot discriminate against you or treat you unfairly just because they have to withhold child support from your paycheck. What if I cannot afford to pay the amount that is determined by the child support guidelines? You may ask that the court give you a child support order that is lower than the guideline amount. (The mother or the government can also ask that you be given an order that is higher.) To do this you must convince a court that the guidelines are unjust or inappropriate in your case. The court may also order you to seek employment if you are currently not employed. Why do I owe so much money in child support? There are many reasons that the amount of money you owe can be larger than what you feel you have the ability to pay in child support. First, your original child support order may not have ever accurately reflected what you truly had the ability to pay. Second, you may not have asked for a modification when things changed in your life. If this is the case, you should consider asking a court to change the amount of child support you will owe in the future. Moreover, once you fall behind in paying child support the amount you pay each week will have to be greater. You will have to pay your regular amount of support plus an additional amount to cover what you did not pay in the past. The government may also charge you interest at the rate of 9% per year on any past due child support. You may also be charged other costs:
All of these costs may be added to the amount that you owe each month. What if I want to decrease the amount of my child support payment because things have changed in my life? The court is one way to change the amount of future support you will owe. It is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you pay in the future.
A court will make your child support payments less if it believes that there has been a material change in circumstances that warrants a decrease in support. It is important to show the court that you have tried to get more income. In addition, you should show that you did not do anything bad or negative to cause the problems you have paying child support.
A judge cannot reduce the amounts in past due support you already owe for the time before you asked the court for a change (modification). How can my child support order be increased? In Virginia, there are two ways for a child support order to be increased. The first is after a court hearing. The child support enforcement agency or the mother may request this hearing. If the judge believes that there has been a material change in circumstances that warrants an increase in support, your future child support amount will go up.
Your child support can be increased in another way. This can happen when the child support agency initiates a review of your child support amount. After this review, the child support agency can request that the court increase your child support amount. For the agency to request an increase they must determine that there has been a material change in circumstances.
The agency will send you a notice of this increase in your child support amount. You have 30 days to give (file with) the court a request for a hearing on the increase of the child support amount. If you do not request a hearing, the increase in child support will happen automatically. I lost my job. What should I do? You should immediately notify the child support enforcement agency. In addition, you should attempt to get a decrease in your child support amount (for the future). The court is one way to change the amount of future support you will owe. It is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you pay in the future.
A court will make your child support payments less if it believes that there has been a material change in circumstance that warrants a decrease in support. You should try and show that you did not voluntarily lose your job. In addition, it is important to try and show the court that you have tried to get more income.
A judge cannot reduce the amounts in past due support you already owe for the time before you asked the court for a modification. All the judge can do is reduce the amount of support you will owe in the future. I have a child support order and I am about to move to a new apartment. Is there anything I should do in relation to child support? Yes. You should immediately notify the child support enforcement agency of your new address. That way you will receive any notifications about any future court hearings for your case. In addition, if you have money withdrawn from your paycheck you are required to notify the child support enforcement of your new address. I have a child support order and I am about to change jobs. Is there anything that I should do in relation to child support? Yes. If your child support is being withdrawn from your paycheck, you should immediately notify the child support agency of your new job. If you are directly paying the child support to the custodial parent, you should notify the court of your new job. What are some possible penalties against me if I do not pay my child support? Many penalties may be applied to you for not paying child support. Some of these penalties include the following:
My driver's license was suspended because I was behind in paying child support. I need a car to get to work or as part of my work. What should I do? You may ask a court for a restricted driver's license. Among the things that you may do with a restricted driver's license include:
The court will grant you a restricted driver's license if the court believes there is good cause to grant you one. In addition, the court order will include the restrictions on your driving ability. My driver's license was suspended because I was behind in paying child support. The last question mentioned that it was possible to get a restricted license for work purposes. Are there any other situations where a court will grant a restricted license? Yes. If you ask a court there are other situations where a court may grant you a restricted license. If your driving is necessary for:
You need to follow the proper procedure in asking a court to do this. Can they put me in jail for not paying child support? Yes. One legal basis for placing you in jail is "contempt of court." Contempt of court is a legal term that means you are not following a court order. If you are found in civil contempt you may be incarcerated for up to 12 months. A second legal basis is state criminal law. A non-custodial parent who does not pay child support may also be imprisoned for a specific amount of time and/or pay a fine. In this situation, you are criminally prosecuted and imprisoned for nonpayment, which in Virginia is a misdemeanor. This fine may be up to $500 or up to 12 months in prison for each violation. You may also be required to pay attorney's fees and court costs.
You have the right to be represented by an attorney throughout either a civil contempt of court proceeding or if you are being criminally charged for not paying child support. The custodial parent does not allow me to see my child. Why do I have to pay support? Child support and visitation are two separate issues. You must pay your child support according to the court order regardless of whether you see your child. However, you may go to court and ask for a specific visitation schedule, if you do not have one. If there is a visitation schedule and the child's mother refuses to follow it, you can ask the court to order her to follow the schedule. This may be a very difficult and sometimes frustrating process, but it is possible that it can help you get consistent visitation with your child. In addition, if she does not follow the visitation schedule and there is no reason for her to withhold visitation, this may be grounds for the court to change the visitation or custody arrangement. |
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