[VA] How can a husband rebut paternity and exclude a non-biological child from divorce proceedings?

VA Family Law

Liz

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In Virginia, the presumption of paternity applies to children born during a marriage, meaning the husband is presumed to be the father. However, this presumption can be rebutted by clear and convincing evidence, such as an affidavit of parentage signed by the biological father (VA Code § 20-49.1 (B)(2)). This document is typically available through the Virginia Department of Health or the hospital where the child is born. It's executed at the time of birth by the parents and the hospital files it.

Regarding the timing of filing for divorce, the affidavit of parentage can be executed at any time after the baby is born, but having it in place before finalizing the divorce can help clarify parental rights and responsibilities in the divorce documentation.

As for the DNA test, while it is not legally required if all parties agree on the parentage, it can serve as definitive evidence to rebut the presumption of paternity if needed. (VA Code § 20-49.10)

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Hello, my wife and I have been separated since January 2025. Over the summer of last year months after separation she became pregnant. No one is claiming the child is mine, the biological father is claiming the child and I am not contesting it. What is the best way to ensure custody of the child is properly assigned to my wife and the biological father and how to I address this in the divorce documentation to ensure the court does not reject the documentation.

Lexi, Chatbot

I understand that navigating custody issues can be quite challenging. Have you and your wife already discussed how you both want to approach the custody arrangement for the child?

Yes.

Lexi, Chatbot

Are there any existing legal documents or agreements related to your separation or divorce that might impact this situation?

No.

Liz

Hi there! Welcome. My name is Liz and I’ve been an attorney for more than a decade, and I am here to assist with your legal concerns. Just so you are aware, our service is a legal information-only site. No attorney-client relationship is formed from our conversation. So I can best help, in what state will the child be born?

Hi, the child will be born in Virginia.

Liz

Wonderful, when the child is born, do you know if they will do a hospital or home birth?

Hospital birth.

Some info I want to add, we are using OnlineDivorce.com. The divorce is uncontested, so we are trying to do this as easily as possible. We have no issue with dividing up belongings and our only assets are our individual retirement accounts. The only complication is the pregnancy which we’re all on the same page about. We just want to make sure legally everything is copacetic.

Liz

Oh great, the biological father could execute the affidavit of parentage to overcome the presumption of paternity. Have you done DNA, even though the timing is off, just to have it on file?

No DNA has been done, would like to avoid that if possible since it’s a bit expensive and the baby has not been born yet. I have some follow up questions about the affidavit:

Where would we find the affidavit?
Would I need to do this before filing for divorce? If it’s going to make things significantly easier then we can wait.
How important would a DNA test be if everyone is in agreement about who the child belongs to?

Liz

As for the DNA test, while it is not legally required if all parties agree on the parentage, it can serve as definitive evidence to rebut the presumption of paternity if needed. (VA Code § 20-49.10)

Liz

Does that all make sense?

Yes, thank you.

Liz

How else can I assist?

I just want to relay the correct information to my spouse. So they can sign the affidavit of parentage/acknowledgement of paternity (probably) at the hospital after the time of birth? Then will they be notified when that has been accepted by the courts? Then we would file for divorce?

Liz

It's actually not accepted by the court, it goes to vital records so he's on the birth certificate, but you can include it in your filing so that the child is not a factor in the divorce.

Okay, one more question. When you say include it in the filing, would we include copies of the affidavit and the birth certificate?

Liz

That's correct, as proof the child is not of the marriage.

Okay, excellent. Thank you.

That’s all I have. Thank you again.

Liz

You're very welcome.

Liz

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