Legal Question in Family Law in Virginia
Who actually has legal custody??
I fathered a child out of wedlock. When our daughter was 2 years old we were planning on getting married but I found her cheating on me with my best friend. We split up & our daughter stayed with her grandmother(the mother's mom). The child is now 8 & still living with her grandmother. The mother does not want her but visits her weekly. I get her about 4 times a week. She is VERY attached to her grandmother. I would like her to move in with me but feel guilty taking her away from the grandmother. I also provide financially for her medical care & insurance, school supplies, clothing, & groceries. My question is who actually has custody of my daughter? What rights do I have? My name is on the birth certificate but I have never taken a paternity test to prove she is my biological daughter. Do I have to do that to request custody? Does the grandmother have rights since my daughter has lived with her for 6 years? I would appreciate any information you can provide. Thank you.
2 Answers from Attorneys
Re: Who actually has legal custody??
Absent any documents nobody has formal custody...sounds like the grandmother has de facto custody but nothing more. You have the right to petition the court for custody. Paternity won't be an issue unless someone actually questions whether you are the father. The grandmother has some rights but your rights are superior to hers when it comes to custody of your daughter.
Re: Who actually has legal custody??
Who has custody? The natural parents have full custodial rights to their child until a court takes it away. If you are on the birth certificate you have full custodial rights now. So does mother. Grandmother if she has never been given custodial rights by a court has none.
Can you take your daughter with you to go live in Alaska? Yes. Should you? No. As you point out the child would be traumatized. And as soon as you make a move you can bet mother and grandmother would file petitions.
Generally speaking no one other than parents have guaranteed custodial rights. Grandmother would have to prove "actual harm" to the child if she did not have custodial rights. If the child is as attached to her as you say she may get somewhere. Nevertheless, you sound like you have had a healthy part of your child's life so I see no reason that as between you and mother, you should not gain advantage in any potential custody fight.
As long as you are on the birth certficate you do not have to prove paternity.
Good luck
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