Family Law

Child Custody Outside Divorce

By Melissa Heinig, Attorney
A divorce is not the only situation where custody battles arise. Unmarried parents or unrelated individuals can also request custody of minor children. Continue reading to learn more about custody outside of divorce cases.

One of the most challenging aspects of divorce is child custody. But custody matters often come up in other situations, too. Sometimes unmarried couples have children, and a breakup leads to a custody dispute. In different cases, parents blend two families thereby creating stepparent issues, and others may involve a grandparent or another third-party who requests custody.

Family courts take all custody decisions very seriously. Whether you’ve had custody established for awhile and want to change it, or you’re asking the court to create a new order, it’s essential that you understand how the court handles custody cases before you proceed.

The Child’s Best Interest

Although break-ups and divorce are emotional, some parents are able to work through their issues and work together to decide the best custody arrangement for their family.

But what happens when you’re unable to communicate or agree on a custody arrangement? A court must first determine the child’s best interest. Using the best interests factors as a guideline, the court will allocate custody and visitation between parents in a way that will best serve the child’s health, wellness, and safety.

Unmarried Fathers Can Seek Custody

The laws surrounding unmarried father’s custody rights vary by state, but typically, the first step to obtaining custody or visitation rights of your child is to establish paternity.

When a child is born to a married woman, courts presume paternity to the mother's husband at the time of the birth. Unmarried fathers on the other hand, receive no such presumption. They must demonstrate a biological connection to the child before the court will consider awarding custody.

Contrary to popular belief, placing your name on the birth certificate alone isn’t always enough. Some states require you to sign an affidavit (document) verifying that you are the biological father of the child. Other states require that the father file an official legal request to establish paternity.

Even if you’ve established paternity, the court will only award you custody if you can demonstrate that you can provide for the child's needs. The court’s primary goal is to ensure that the child’s environment is safe and stable, so if the other parent is the child’s primary caretaker, you’ll need to prove to the court that it’s in your child’s best interest to modify the current arrangement to allow you visitation or joint custody, which means you share custody with the child's other parent.

While it’s more common for the court to award primary custody of the child to one parent and visitation to the other, there are some situations where shared custody is best for the child. Talk to an experienced family law attorney if you have questions.

Third Party Custody: Non-Parents and Guardians

One of the most complicated situations in custody matters is when a person other than a biological parent wants custody of a child. A non-parent, like a stepparent or grandparent, must overcome an extremely high standard to obtain custody.

First, the individuals must demonstrate to the court that they have standing, or a right, to ask for custody. In most states, this means that you’ll need to prove that you’ve been caring for the child, have guardianship, or that you have the biological parents’ permission to establish custody.

If you overcome this first step, you’ll next need to show the court that the parents are unfit to care for the child and that it’s in the child’s best interest for the court to award you custody.

How Does the Court Decide Custody?

Deciding custody is no easy task, and no single factor determines a custody award. State laws vary, but most courts evaluate the following:

  • the biological parent’s wishes
  • each parent’s mental and physical health
  • the child’s preference (if the child is of a sufficient age and/or maturity level)
  • the emotional bond between the child and each parent
  • the child’s adjustment to the community, school, and current home, and
  • each parent’s ability to provide a safe and stable home for the child.

The court will also consider whether there is a history of child abuse or neglect, domestic violence, or drug or alcohol abuse by either parent.

It’s also essential that the custodial parent foster the relationship between the child and the noncustodial parent. If you have a history of frustrating the other parent’s visitation with the child, the court will take notice, and it may impact your custody award.

In the end, the court’s primary concern is that the parent with custody provides the child with a safe, stable, and happy environment. Custody cases involve personal and emotional matters, and it’s easy to lose sight of what’s important: your child’s best interest. Everyone should work together to ensure that both parents protect the child's physical and emotional needs.

Contact an Attorney

If you’re currently experiencing a custody disagreement or if you are thinking about filing to establish custody or modify your current order, it’s important to speak with an experienced family law attorney before you file. The right attorney will not only know and understand your state laws about custody but will also be an advocate for your parental rights.

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