Rights to Keep Children If No Custody Agreement Is in Place

Jupiterimages/Brand X Pictures/Getty Images

One of the biggest questions when many marriages end is what happens to the children. In a divorce, couples either draw up a custody agreement that a judge can approve, or the judge imposes one on them. If parents don't divorce – they were never married, or they separate without divorce – there may be no custody agreement. The law for their state says how custody must be handled.

Separated But Not Divorced

If a married couple separates informally without divorcing, their legal rights and responsibilities as parents don't change. Both parents share equal custodial rights, and they're entitled to equal shares of parenting time. That could mean they each take turns having physical custody, or that one parent chooses to let the other become primary caregiver. No matter what the arrangement, the parent in physical possession of the child has no right to keep the other parent away or set time limits on visits.

Unmarried Parents

If the child's parents were never married, the law in most states says the father has no rights without a custody agreement. Instead, the mother is automatically entitled to custody. Nothing stops the parents from working out a different arrangement, such as joint custody or the father taking the child, if they're in agreement and their child's welfare doesn't suffer. If they can't work things out, they may end up in court. In that case, a custody order from the judge will probably resolve things.

A Nonlegal Parent

Things change if the either parent isn't a biological parent – one's a parent, and the other partner or spouse entered the scene later. The law gives almost all the rights to the birth parent, and next to nothing to the partner. Even if the partner served as primary homemaker, he may have no rights if the legal parent refuses to allow visitation. Some states, such as Ohio and Virginia, do allow the partner to file in court for visitation rights.

If the couple is unmarried, the law may not even acknowledge the birth father as one of the parents. With married couples, the husband is automatically the father in the eyes of the law. An unmarried father has to take steps – filing an affidavit of fatherhood, getting his name on the birth certificate – to establish himself as a birth parent.

State Laws

General legal guidelines don't have all the answers. Special circumstances in an individual case may lead to a different result. Specific states also have laws that change how these matters are handled. Texas, for example, does allow informally separated couples to draw up custody agreements without dissolving their marriage.