By FindLaw Staff | Legally reviewed by Nicole Prebeck, Esq. | Last updated December 29, 2022
While child custody and visitation issues arise most often as part of a divorce, parents going through a divorce are not the only people who might be involved in a child custody situation. Custody disputes can arise between unmarried parents, grandparents can seek to enforce their rights to visitation with their grandchildren, and, in rare cases, relatives or others having a close relationship with a child may seek to be awarded custody.
The following is a discussion of the laws and procedures concerning child custody and visitation without divorce.
Most states will give legal custody to the mother of the child unless and until legal paternity is established. Once paternity is established, most states will presume legal joint legal custody of the child in the best interest of the child. All custody and parenting-time decisions are based on the best interest of the child.
For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples -- child custody and visitation will be resolved either through an agreement between the child's parents or by a family court judge's decision. But unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues, such as the division of property and payment of spousal support.
Therefore, the decision-making process is focused almost exclusively on child custody. For this reason, the resolution of 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 for resolution.
In some cases, people other than a child's parents may wish to obtain custody -- including relatives like grandparents, aunts, uncles, and close family friends. Some states label such a situation as "non-parental" or "third-party" custody, while other states refer to the third party's goal in these situations as obtaining "guardianship" of the child. Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody.
The process usually begins when the person seeking custody files a document called a "non-parental custody petition" (or similarly-titled petition) with the court, which 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 clear and convincing evidence establishes that the non-parent:
The court will also consider whether the relationship is in the child's best interest 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.
In addition to seeking custody of children in some situations, grandparents may also wish to enforce their right to visitation with their grandchildren if that right is being interfered with by the child's parent(s), i.e., after a divorce or separation. All 50 states and the District of Columbia have some variation of a law protecting grandparents' right to visitation with their grandchildren.
Custody disputes can be highly emotional and procedurally complicated. The assistance of a qualified attorney can help ensure that you obtain the custody and visitation terms you are seeking.
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