Who has custody of a child if there is no court order?
What is custody?
Custody refers to the legal right to care for and make decisions regarding a child. There are two types of custody – physical custody and legal custody. Physical custody means the right to have the child live with you. Legal custody is the right to make major decisions about the child’s health, education, and welfare. A parent can have both physical and legal custody or just one type.
Default custody situation when parents are married
If parents are legally married when the child is born, both parents automatically have equal physical and legal custody rights over the child. This is the default legal situation, even if the parents separate or divorce later on. Unless a court order states otherwise, the parents continue to share joint custody.
Custody when parents are unmarried
For unmarried parents, the custody situation is different. An unmarried mother automatically has sole physical and legal custody at the time of birth. An unmarried father has no legal right to custody or visitation – even if he is named on the birth certificate.
Without a court order, an unmarried father cannot take the child away from the mother or make any legal decisions. The mother has full custody and control as the primary legal guardian.
Custody agreements and court orders
Although unmarried mothers have automatic custody, parents can come to an informal custody agreement on their own. For example, they may agree the father can have visitation or that they will share joint physical custody.
However, informal custody agreements are not legally binding. At any time, either parent can change the terms without the other’s consent.
To make a custody agreement official, unmarried parents must go to court and get a formal custody order. A judge will review the facts and issue an order granting custody rights and a visitation schedule.
Seeking custody through the courts
If unmarried parents cannot agree on custody, either one can file a custody case with the court. The judge will hold a hearing to evaluate what arrangement is in the child’s best interests.
The court has power to grant either parent sole or joint custody after considering certain factors. These include the child’s age, each parent’s ability to provide a stable home, and the child’s bonded relationship with each parent.
Factors courts consider for custody
When making a custody ruling, key factors judges assess are:
- The quality of the parent-child relationship
- Each parent’s ability to provide food, shelter, clothing, medical care
- Each parent’s role in performing caretaking duties for the child
- History of domestic violence, substance abuse, or neglect
- The child’s adjustment to home, school, community
- The mental and physical health of all individuals involved
Courts prefer to grant custody to parents who demonstrate the willingness and ability to meet the child’s needs.
Getting legal advice
Custody laws vary by state, so it’s important to consult a local family law attorney. An attorney can advise unmarried parents on custody rights in their jurisdiction. They can also represent parents during negotiations or in court if a custody case is filed.
Changing an informal custody arrangement
If unmarried parents have an informal custody situation, either one can decide to change it. For example, a father who has visitation a few days a week may want 50/50 custody rights. Unless the change is mutually agreed upon, the parent wanting alteration should get a court order to enforce new terms. Otherwise, the other parent can refuse or restrict access to the child.
Steps for unmarried parents to gain custody
An unmarried father who wants custody should:
- Establish paternity legally by signing the birth certificate, acknowledging paternity in writing, or taking a paternity test
- Spend time caretaking to create a relationship and bond with the child
- File for custody in the local family court, usually through a lawyer
- Present facts to the judge showing their ability to provide and care for the child
- Get a custody order granting rights if awarded by the court
An unmarried mother seeking to gain sole physical custody can take similar steps.
Custody in special circumstances
Special circumstances may impact who gets custody without a court order:
- If an unmarried mother dies, custody may go to the father
- If both parents are unfit, a relative could get custody
- If a child is born via surrogate, the intended parents get custody
Adoption or termination of parental rights can also change the custody situation.
Joint custody considerations
Joint physical or legal custody is often an option for unmarried parents. With joint legal custody, the parents share decision-making. Joint physical custody means the child splits time living with each parent.
Joint custody works best when parents communicate, cooperate, and live near each other. The court evaluates the practicality of this arrangement based on the parents’ willingness and ability to work together.
Child’s best interests
In all custody decisions, the child’s best interests are the priority. Courts determine custody based on creating a stable, loving home where the child’s needs are fully met. Parents may have to put aside personal conflicts and preferences to achieve this goal.
Frequently Asked Questions
FAQ 1: Does an unmarried father’s name on the birth certificate give him custody rights?
No, just being named on the birth certificate does not give an unmarried father any legal right to custody or visitation. A court order is required.
FAQ 2: Can unmarried parents have different custody agreements for multiple children?
Yes, custody decisions are made on a case-by-case basis. Custody orders can be customized for each child’s unique circumstances.
FAQ 3: What if parents live in different states and share custody?
Special considerations apply, but courts can award joint physical custody across state lines. A parenting plan is needed to detail transportation and how to resolve disputes.
FAQ 4: When can a child decide which parent they want to live with?
A child’s preference is considered once they reach a certain age, often 11+ years old. But the child’s wishes alone do not determine custody.
FAQ 5: Can unmarried fathers seek custody rights from another state?
Yes, but it’s more complex. The case gets filed where the child has resided for the past 6 months.
