Custody and Visitation Without Divorce

Child custody disputes and visitation issues oftentimes arise out of divorce. But these issues can still come up even if the couple wasn't ever married. Custody disputes can arise between unmarried parents. They can even arise with grandparents who want visitation rights with their grandchildren

In rare cases, family members or others with a close relationship with the minor child can join the custody battle.

The following is a discussion of the laws and procedures about child custody and visitation without divorce.

Custody Without Divorce

Most states will give legal custody to the mother of the child unless and until legal paternity is established. Once the father is established, most states will presume legal joint legal custody of the child in the best interests of the child. All custody arrangements and parenting-time decisions are based on the best interests of the child.

For unmarried parents in a custody dispute, custody decisions are made similarly to divorcing couples. Child custody and visitation will be resolved through an agreement between the child's parents, or a judge will decide. These parents will not need to resolve any complicated or contentious divorce-related issues.

So, the decision-making process is focused almost entirely on child custody. For this reason, deciding custody and visitation may be more simplified for unmarried parents. If unmarried parents don't reach a child custody and visitation agreement out of court, the matter will go before a family court judge.

The judge will make a court order on the custody of the child. The custody order is legally binding and ensures the custody rights of each parent. This order contains a parenting plan or visitation schedule that each parent must follow. If there is a change of circumstances, the parents will need to seek court approval for modifying the custody arrangement.

Making the Custody Arrangement

The family court will make a determination about the custody arrangement. There are several different types of custody that may be ordered by the court. Most courts want to give joint custody to the parents, where they share joint legal custody and joint physical custody of the child. This means that the parents collaborate on major decisions about the child's life. They also share parenting time with the child (usually equally). The child lives with both parents.

If one parent is "unfit" to parent, this parent may lose some of their parental rights. The custody arrangement may be tailored to favor the other parent. This might mean the parent may get sole legal custody of the child, meaning they make all major decisions about the child's life alone. This includes decisions about health care, education, medical care, and religion. The other parent (the "non-custodial parent") may be ordered to pay child support.

The court will make the decision in the best interests of the child. The court will consider several factors to make this determination. Some factors include:

  • The age and wishes of the child (if the child is old enough)
  • The needs of the child
  • The ability of each parent to take care of the child
  • The physical and mental health of each parent
  • The child's relationship to whoever is seeking custody
  • Any history of child abuse or domestic violence

A court may also award temporary custody or issue a temporary order to protect the child's best interests while the case is ongoing. A temporary order can address issues such as a parent's visitation, child support, and decision-making authority. Temporary orders are typically in effect until there is a final order.

Non-Parental Custody

In some cases, people other than a child's parents may wish to get custody. This may be grandparents, aunts, uncles, or close family friends. Some states label such a situation as "non-parental" or "third-party" custody. Other states refer to the third party's goal as obtaining "guardianship" of the child. Whatever the label, most states have specific procedures.

The process usually begins when the person seeking custody files a document called a "non-parental custody petition" with the court. This sets out the person's relationship to the child, the status of the child's parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody. Usually, a copy of this petition must also be delivered to the child's parents if they are living and their whereabouts are known.

For example, non-parents seeking custody of a child in Utah may be granted custodial or visitation rights if the evidence establishes that the non-parent:

  • Intentionally assumed the role and obligations of a parent
  • Formed a substantial emotional bond and created a parent-child type relationship with the child
  • Substantially contributed emotionally or financially to the child's well-being

The court will also consider whether the relationship is in the child's best interests and if the loss of the relationship with the non-parent would substantially harm the child. Lastly, the court will consider if the parent(s) are absent or are found by the court to have abused or neglected the child.

Grandparents' Rights to Visitation

Grandparents may also wish to enforce their right to visitation with their grandchildren. States vary in how they grant grandparents' rights to visitation. In general, grandparents have the right to visitation if it is in the best interests of the child and if one of the child's parents supports the visitation. In cases where the child's parent(s) object to the visitation, the court will consider a wide range of factors in addition to the beliefs of the parent(s). Some factors include the nature of the grandparent-grandchild relationship and the impact of visitation on the child's well-being.

Determining Custody and Visitation Without Divorce? Call an Attorney

Custody disputes can be highly emotional and procedurally complicated. The assistance of a qualified family law attorney can help ensure that you obtain the custody and visitation terms you want. They can help explain the different types of custody to you. They will assist you with custody issues. They can provide valuable legal advice throughout your custody case.

Find an experienced child custody attorney and get peace of mind.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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