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Who has custody of the children if there is no court order?

On Behalf of | Dec 7, 2022 | family law

You may be separated or in the initial stages of your divorce, and there are children in the mix. If there is no custody order specifying when the child should be with each parent (physical custody), the decision-making authority of each parent (legal custody) and other issues related to raising the child, it can be confusing.

Several factors will determine which parent has custody of the children pending a court order, as explained below.

Who is the legally recognized parent or parents?

The law only recognizes the mother as a parent if a couple is unmarried and the father has not established paternity. It means that she bears sole physical and legal custody until the other parent gets legal recognition. Once the father establishes paternity, he will get equal rights to the children, just like their mother.

Similarly, married couples have joint legal and physical custody of the children conceived or adopted during the marriage, as they are both legally acknowledged as parents. Neither parent has the upper hand and should not prevent the other from seeing or spending time with the children.

How can a court order help?

It is not wise to co-parent without court-issued custody orders. Even when you and your co-parent have a verbal or informal agreement, it is best to formalize it in court. Fallouts are commonplace, and you may find yourself in a complicated situation without a court order.

In addition, court-issued custody orders are enforceable. You can seek the court’s intervention if something happens. For instance, your co-parent may prevent you from accessing the children or relocate with them to a different state. In such a case, you can turn to the courts for relief and protect your parental rights.