Who Has Child Custody When There's No Court Order?

A custody order is a document issued by a court. It explains when the child should be with each parent, who has the authority to make child-related decisions and anything else related to raising the child.

When there's no custody order, custodial rights typically go to whoever the state recognizes as a legal parent of the child. This depends on the parents' marital status at the time of the child's conception or birth.

Keep in mind, your state may have slightly different rules.

If the parents are married

Married parents have joint legal custody and joint physical custody of their children, even when there's no court order.

States automatically recognize married spouses as the legal parents of children conceived, born or adopted during their marriage. In some areas, this includes children born via artificial insemination and in-vitro fertilization, so long as both spouses agreed to it.

While these equal rights can be beneficial, there's some cause for concern — either parent could legally remove the child from the state or country without permission. Getting a custody order (more below) would prevent a parent from doing this.

If the parents aren't married

When it comes to unmarried parents, the mother has sole legal custody and sole physical custody of her children. She's the child's only legal parent until the state recognizes otherwise.

If the mother wants to name another legal parent, she can sign an acknowledgment of paternity with any possible father or of parentage with another person. In cases of uncertain paternity, the mother or alleged father can request DNA testing.

Someone who is not the child's biological parent can open a parentage case to seek legal parent status. They must prove in court that they play a significant role in the child's life and that naming them a legal parent is in the child's best interest.

In some states, the second-named legal parent has equal rights to custody. Regardless, you should get a custody order to ensure both parents allow one another to take part in the child's life.

LGBTQ parents

Most states haven't updated the language of their laws to include LGBTQ couples. However, the rules above generally apply to married and unmarried parents, respectively.

The best thing to do is consult with a lawyer who specializes in LGBTQ parental rights or find a legal aid office that can help.

How to get a custody order

The first step is to fill out a petition for custody, divorce or separation, then hand it in at your local family court. (Custody is automatically part of divorce and separation cases.) These petitions are often available online or you can get one from the courthouse.

Even before opening a case, you can request an emergency order if there's a chance the other parent will take your child outside of the state or country or cause other harm to them. The court will only issue this order if there's strong evidence the child is in danger.

After you open a case, you can either settle or let the judge decide matters. Settling is when you negotiate an agreement with the other parent. To settle custody issues, you'll draft a parenting plan, then submit it to the court for review. A judge will sign off on your plan if its terms are in the child's best interests, making it the final custody order.

Without a settlement, you'll have to go through your state's court process. A judge will decide the final court order based on arguments and evidence presented at trial. However, it could take months for this to happen.

To get a custody arrangement sooner, you can agree on a temporary plan or ask the court to make one. The temporary order stays in place until the judge signs the final order.

Staying organized

If you need to get a court order for parentage or custody, preparation is key to building a strong case.

You may need to create a parenting plan, draft multiple custody schedules, track your time with your child, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Take advantage of our technology to stay on top of all the moving parts of your case.