Who Has Custody of a Child If There is No Court Order?

When there is no court order both parents have equal rights over the child or children. There is no parent more valuable than the other in the eyes of the law. Both mother and father have equal rights to spend as much time with the child as they want. Even when responsibilities are split between the husband and the wife, no parent has more claim to the child than the other.

However, if you need to separate then you will need to establish a custody arrangement as soon as possible.

When You Suddenly Need a Custody Order

The situation of each spouse may differ. For example, one parent may be more capable of providing financial assistance than the other – or one parent may be able spend more time with the children. This is where child support and visitation will become important. When couples put in place visitation rights, they lose a part of their children’s time to their spouse or partner.

The following will discuss the important things you need to know when working on a custody order.

Putting a Custody and Visitation Order in Place

To implement a custody order, you have to either develop an agreement with your partner or have a judge decide on it. If you’ve already drafted an agreement, then your lawyers will coordinate to incorporate it into the order. They will ensure that the terms will be recognized and implemented to the same extent that a court order will.

As the name implies, the court order sets out the conditions for how the child’s custody will be handled and whether it will be a joint or sole legal custody. Joint legal custody is the ability for both parents to make decisions regarding the child’s wellbeing, including educational, medical, and religious decisions. The order will also specify the type of physical custody given to each parent: sole or shared.

Many lawyers will tell you that judges seem more eager to give out shared custody these days and that it’s rare for someone to completely win or lose in a custody case. Unless the situation involves serious emotional, physical or sexual abuse, then most likely both parents will have equal (or close to equal) rights. In many cases, the more the parents fight, the more likely that they will be awarded shared custody.

There is no standard visitation schedule that the court will order if the parents do not come to an agreement. Some things to consider when creating a custody and visitation agreement between you and your spouse, whether by yourselves or through the court, is to consider the specific schedule that works best for both parties and the children. While no solution is ever perfect, working together to put the child’s interests at the forefront of all decisions will help make the process smoother. Consider how holidays (Christmas, Easter, Thanksgiving, etc.) will be split, whether the child sees both parents the same day or if the spouse’s alternate years with the children. Also consider school breaks and how best to share those as the children get older. Finally, consider giving the other parent the right of first refusal when situations arise that prevent you from exercising your custody or visitation with the child, before asking others to watch them.

Unless there is considerable animosity, most judges believe that it is in the best interest of the child to have both parents present. When you read over your custody order, you will hear and read “the best interest of the child” a great deal. In many states, there can be common factors that judges consider when determining what will be for the best interest of the child. In Virginia, the factors a judge will consider in determining what is in the best interest of the child include:

  1. The age, mental and physical condition of the child. The courts always consider the changing developmental needs of the children when deciding on the court order.
  2. The age, mental and physical condition of the parents.
  3. The existing relationship between the child and each parent. The positive involvement of each parent to the child will be considered as well. Parents will be evaluated against their role in meeting the physical, intellectual and emotional needs of the child.
  4. The primary needs of the child – this will include essential relationships around the kid. These may include but not limited to extended family members, peers, and siblings.
  5. Each role of the parent and how they played out in the life of the child and possibly in the future.
  6. The capacity of the parent to support the child and have an active relationship with him or her. How the parents interacted will also play a part – whether they have previously and unreasonably denied visitation before.
  7. The demonstrated ability and relative willingness of each parent to continue their relationship with their child. The courts can also consider the ability of the parents to cooperate and resolve problems that affect their kid.
  8. The child’s preference (within reason) will also be considered. However, this will only take effect if the child already is already in the right age, of reasonable understanding, age, and experience.
  9. History of family abuse or any related court documents that the court can find.
  10. Other factors that the court will see as necessary to determine the right custody order for the kid.

The judge will look at all of these factors, as they are applicable to your particular case. There is not one that is weighed heavier than the others, except as the facts of your case dictate. There are other factors that can affect how your custody order will play out. If you are drafting it versus doing it as part of a divorce, then things may play out differently, too. Preparing the custody case by itself is usually more comfortable than when it is part of a divorce case. You will have to consider mediation and negotiation for divorce. It is best to consult with your lawyer to understand how it will work. Your lawyer can also advise you on the right steps to take to ensure that your custody order goes as smoothly as possible.