Is it true if I’ve been separated for 3 years and am having a baby with my boyfriend that the baby would have to have my husband’s last name and not the biological father’s?

I had a protective order against my boyfriend. I don’t want him to have the last name and he’s saying he’ll sue me for the last name and to take full custody. Can he do that if he’s not at the hospital to sign the papers?

Asked on October 28, 2015 under Family Law, Virginia


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

According to VA law, the husband of the mother is presumed to be the legal father of her child. If the mother is married or was married up to 10 months prior to the birth of the child to someone other than the biological father of the child, paternity must be established in court. So while you can put any name on the birth certificate, your husband will still be presumed to be the father.

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