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Who has custody of a child?
There’s a lot to unpack here. Co-parenting without getting the court involved is technically possible, but in most cases, it may not be the best course of action. The first question to tackle is who has custody of the child? Without court, the primary custodian of the parent is left to make the majority of the decisions for the child, unless a parenting plan has been introduced.
If You Are Unmarried
If a mother and father were not married to each other or anyone else when the child was born, and the father has not gone to the court asking for custody or visitation with the child, then in most states the mother has sole legal custody.
In this situation, if you are the mother, you may feel very comfortable negotiating an amicable parenting agreement outside of the courts. You have sole custody of your child, and the parenting agreement is unenforceable by a court of law. You retain all rights and have a say-so in everything from where your child lives, to where he or she spends holidays, to where the child goes to school, to authorizing medical treatment.
Just remember, if the father violates your amicably made agreement, for example, by no longer paying child support, you have no recourse as the parenting agreement is not enforceable in court and you have sole custody, which means you are solely responsible in the eyes of the law for the care and upbringing of your child.
If You Are Separated
If a mother and father are married to one another when the child is born, they share equal custody rights to the child. Custody does not change until the court issues a custody order. So, if the parents choose to live apart from one another, but not file for a legal separation or divorce, they both retain shared custody.
When separation is amicable between parents, sometimes they will choose to work out their parenting plan without going to the courts. It is perfectly legal, just like it is perfectly legal for two married parents to make decisions together about their children without going to the court.
Problems can arise; however, if one parent feels the other parent is not sticking to the parenting agreement or if one parent wants to get remarried. Remarriage isn’t a possibility until the parent dissolves their current marriage. Enforcement of a parenting agreement isn’t possible until a court issues a custody order.
If You Are Divorced
If a mother and father want to divorce, they will have to go through some legal proceedings, but they don’t have to choose a full-blown trial.
Divorcing parents can choose alternative ways to divide assets and decide on parenting agreements, such as arbitration. Custody agreements and parenting plans are filed through the court legally, and the court issues the divorce decree so parents can legally remarry, but the negotiations between the parents will take place outside of the courtroom, in private, without a public trial or lawyers. A trained, neutral, third-party decision-maker will help the parents work out the details of their divorce together. Read more about the benefits of family law arbitration
Making Changes to the Parenting Agreement
A more common question comes up between parents who have gone through the process of divorce, made an initial parenting agreement, but now, because of the passage of time or change or circumstances, want to make changes to the parenting agreement. They don’t want to pay to go back to the courts again and would rather modify the agreement between themselves.
That is perfectly fine if both parents are aware that, if a disagreement arises down the line, the courts can only make decisions based on the wording of the original parenting agreement. Your modifications, even if you’ve been successfully followed them for some time, are not legal or binding.
TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.