Can an Acknowledgement of Paternity be Rescinded in Virginia?
Full Question:
Answer:
If the son signed an acknowledgment of paternity, he has 60 days to rescind it. The aknowledgement may be rescinded by either party within sixty days from the date on which it was signed unless an administrative or judicial order relating to the child in an action to which the party seeking rescission was a party is entered prior to the rescission. Otherwise, it may be necessary to file a paternity action in court to establish paternity and the responsibility for child support.
Children born to unwed persons do not automatically have a legal father without a paternity action establishing the identity of the father, whether agreed or contested. Some states allow the establishment of paternity by the execution of an acknowledgment of paternity form without a formal court action. Unmarried fathers have rights and duties similar to those of married fathers. Couples who are living together but are not married should take steps to ensure that both are recognized as the legal parents. Both parents can be listed on the birth certificate. A parent who is not listed may be able to be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. Generally, paternity must be established for the father to seek custody and/or visitation rights with his child. Paternity refers to the legal acknowledgment of the parental relationship between a father and his child.
Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for child support. State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.
In most states, a paternity action takes the form of a civil lawsuit. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity.
A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future.A man is presumed to be the father if he has been married to the mother for a certain time before the child is born. That presumption may be rebutted by clear and convincing standards of evidence, such as a DNA test. A man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father. If a biological father is determined to be a man not married to the mother, that man may be ordered to have visitation rights, as well as other obligations.
Once paternity has been established, a father has the right to seek custody of or visitation with his child. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. A custody agreement between the parents or a court order can clarify custody and visitation issues. Unmarried parents without custody are entitled to the same visitation rights as divorced parents, absent extraordinary factors such as abuse or domestic violence.
The following are Virginia statutes:
§ 63.2-1913. Administrative establishment of paternity. —
The Department may establish the parent and child relationship between
a child and a man upon request, verified by oath or affirmation, filed by
a child, a parent, a person claiming parentage, a person standing in loco
parentis to the child or having legal custody of the child, or a
representative of the Department or the Department of Juvenile Justice.
The request may be filed at any time before the child attains the age of
eighteen years.
Pursuant to subsection F of § 63.2-1903, the Department may summons a
parent or putative parent to appear in the office of the Division of Child
Support Enforcement to provide such information as may be necessary to
the proceeding.
Paternity may be established by a written statement of the father and
mother made under oath acknowledging paternity or scientifically reliable
genetic tests, including blood tests, which affirm at least a
ninety-eight percent probability of paternity. The Department may order
genetic testing and shall pay the costs of such tests, subject to
recoupment from the father, if paternity is established. Where an
original test is contested and additional testing is requested, the
Department may require advance payment by the contestant.
Before a voluntary acknowledgment of paternity is accepted by the
Department as the basis for establishing paternity, the Department shall
provide to both the mother and the putative father a written and oral
description of the rights and responsibilities of acknowledging paternity
and the consequences that arise from a signed acknowledgment, including
the right to rescind the acknowledgment within the earlier of (i) sixty
days from the date of signing or (ii) the date of entry of an order in an
administrative or judicial proceeding relating to the child in which the
signatory is a party.
A genetic test result affirming at least a ninety-eight percent
probability of paternity shall have the same legal effect as a judgment
entered pursuant to § 20-49.8. When sixty days have elapsed from its
signing, a voluntary statement acknowledging paternity shall have the
same legal effect as a judgment entered pursuant to § 20-49.8 and
shall be binding and conclusive unless, in a subsequent judicial
proceeding, the person challenging the statement establishes that the
statement resulted from fraud, duress or a material mistake of fact. In
any subsequent proceeding in which a statement acknowledging paternity is
subject to challenge, the legal responsibilities of any person signing it
shall not be suspended during the pendency of the proceeding, except for
good cause shown.
The order of the Department in proceedings pursuant to this
section shall be served upon the putative father in accordance with the
provisions of Chapter 8 (§ 8.01-285 et seq.) or Chapter 9 (§ 8.01-328 et
seq.) of Title 8.01. The Department shall file a copy of its order
determining paternity, including the information required by subsection C
of § 20-49.8, with the State Registrar of Vital Records within thirty
days after the acknowledgment becomes binding and conclusive or the order
otherwise becomes final. No judicial or administrative proceeding shall
be required to ratify an unchallenged acknowledgment of paternity nor
shall the Department or the courts have any jurisdiction over proceedings
to ratify an unchallenged acknowledgment.
§ 63.2-1914. Hospital paternity establishment programs. —
Each public and private birthing hospital in the Commonwealth shall
provide unwed parents the opportunity to legally establish the paternity
of a child prior to the child's discharge from the hospital following
birth, by means of a voluntary acknowledgment of paternity signed by the
mother and the father, under oath.
Birthing hospitals are defined as hospitals with licensed
obstetric-care units, hospitals licensed to provide obstetric services,
or licensed birthing centers associated with a hospital. Birthing centers
are facilities outside hospitals that provide maternity services.
Designated staff members of such hospitals shall provide to both the
mother and the alleged father, if he is present at the hospital,
(i)
written materials regarding paternity establishment,
(ii) the forms
necessary to voluntarily acknowledge paternity,
(iii) a written and oral
description of the rights and responsibilities of acknowledging
paternity, and
(iv) the opportunity, prior to the child's discharge from
the hospital, to speak with staff who are trained to provide information
and answer questions about paternity establishment. The provision by
designated hospital staff members of the information required by this
section, consistent with federal regulations, shall not constitute the
unauthorized practice of law pursuant to Chapter 39 (§ 54.1-3900 et seq.)
of Title 54.1.
Hospitals shall send the original acknowledgment of paternity
containing the social security numbers, if available, of both parents,
with the information required by Article 2 (§ 32.1-257 et seq.) of
Chapter 7 of Title 32.1, to the State Registrar of Vital Records so that
the birth certificate issued includes the name of the legal father of the
child.
The Department shall
(a) provide to birthing hospitals all necessary
materials and forms, and a written description of the rights and
responsibilities related to voluntary acknowledgment of paternity;
(b)
provide the necessary training, guidance and written instructions
regarding voluntary acknowledgment of paternity;
(c) annually assess each
birthing hospital's paternity establishment program;
(d) pay to each
hospital an amount determined by regulation of the Board for each
acknowledgment of paternity signed under oath by both parents; and
(e)
determine if a voluntary acknowledgment has been filed with the State
Registrar of Vital Records in cases applying for paternity establishment
services.
§ 20-49.1. How parent and child relationship established. —
A. The parent and child relationship between a child and a woman may be
established prima facie by proof of her having given birth to the child,
or as otherwise provided in this chapter.
B. The parent and child relationship between a child and a man
may be established by:
1. Scientifically reliable genetic tests, including blood tests, which
affirm at least a ninety-eight percent probability of paternity. Such
genetic test results shall have the same legal effect as a judgment
entered pursuant to § 20-49.8.
2. A voluntary written statement of the father and mother made under
oath acknowledging paternity and confirming that prior to signing the
acknowledgment, the parties were provided with a written and oral
description of the rights and responsibilities of acknowledging paternity
and the consequences arising from a signed acknowledgment, including the
right to rescind. The acknowledgement may be rescinded by either party
within sixty days from the date on which it was signed unless an
administrative or judicial order relating to the child in an action to
which the party seeking rescission was a party is entered prior to the
rescission. A written statement shall have the same legal effect as a
judgment entered pursuant to § 20-49.8 and shall be binding and
conclusive unless, in a subsequent judicial proceeding, the person
challenging the statement establishes that the statement resulted from
fraud, duress or a material mistake of fact. In any subsequent proceeding
in which a statement acknowledging paternity is subject to challenge, the
legal responsibilities of any person signing it shall not be suspended
during the pendency of the proceeding, except for good cause shown.
Written acknowledgments of paternity made under oath by the father and
mother prior to July 1, 1990, shall have the same legal effect as a
judgment entered pursuant to § 20-49.8.
3. In the absence of such acknowledgment or if the probability
of paternity is less than ninety-eight percent, such relationship
may be established as otherwise provided in this chapter.
C. The parent and child relationship between a child and an adoptive
parent may be established by proof of lawful adoption.
§ 20-49.2. Commencement of action; parties; jurisdiction. —
Proceedings under this chapter may be instituted upon
petition, verified by oath or affirmation, filed by a child,
a parent, a person claiming parentage, a person standing in
loco parentis to the child or having legal custody of the
child or a representative of the Department of Social
Services or the Department of Juvenile Justice.
The child may be made a party to the action, and if he is a
minor and is made a party, he shall be represented by a
guardian ad litem appointed by the court in accordance with
the procedures specified in § 16.1-266 or § 8.01-9.
The child's mother or father may not represent the child as
guardian or otherwise. The determination of the court under
the provisions of this chapter shall not be binding on any
person who is not a party.
The circuit courts shall have concurrent original
jurisdiction of cases arising under this chapter with the
juvenile and domestic relations district courts when the
parentage of a child is at issue in any matter otherwise
before the circuit court. The determination of parentage,
when raised in any proceeding, shall be governed by this
chapter.
§ 20-88.63. Petition to establish support order. —
A. If a support order entitled to recognition under this chapter has
not been issued, a responding tribunal of the Commonwealth may issue a
support order if
(i) the individual seeking the order resides in another
state or
(ii) the support enforcement agency seeking the order is located
in another state.
B. The tribunal may issue a temporary child support order if the
tribunal determines that such an order is appropriate and the individual
ordered to pay is:
1. A presumed father of the child;
2. Petitioning to have his paternity adjudicated;
3. Identified as the father of the child through genetic testing;
4. An alleged father who has declined to submit to genetic testing;
5. Shown by clear and convincing evidence to be the father of the
child;
6. An acknowledged father as provided by applicable state law;
7. The mother of the child; or
8. An individual who has been ordered to pay child support in a
previous proceeding and the order has not been reversed or vacated.
C. Upon finding, after notice and opportunity to be heard, that an
obligor owes a duty of support, the tribunal shall issue a support order
directed to the obligor and may issue other orders pursuant to § 20-88.48.
