Rights to Keep Children If No Custody Agreement Is in Place

by Kimberly Turtenwald

When two parents split up, whether it is due to a divorce or the parents were never married and are now breaking up, the custody of the children is not established until there is a court order in place. The rights of each parent before a custody order is in place varies depending on the state and whether or not the parents were married.

Unmarried Mother's Rights

mother with child

In many states, an unmarried mother automatically has sole custody of her child unless a custody case is pending or completed. This means that the mother is the only one who has legal rights to the child. She is free to move wherever she pleases and can refuse visitation to the child's father. However, if she does agree to allow the father visitation with the child without a court order, it depends on the state whether he is allowed to keep the child or must return him.

Unmarried Father's Rights

father with child

When the parents are not married, the father typically has no rights to keep the child in most states. Some states will allow the father rights equal with those of the mother if an affidavit of paternity is signed and filed with the state. This affidavit simply names him as the father and does not serve as an official custody order. It does, however, grant him access to the child and also would allow him to keep the child.

Married Parents

mother driving child in car

If the parents were married and are both legally considered to be the child's parents, when they separate, both parents have equal rights to the child. Mothers or fathers can take the child anywhere they please, and cannot suffer legal ramifications if they refuse to return the child. However, in many states, as soon as a divorce is filed, neither parent can withhold the child from the other, though there is no court order in place.


court room

Though there are no legal consequences of keeping a child from the other parent, some other consequences may exist. If one parent keeps the child from the other and a custody case is begun, the court does not look favorably on the parent who has withheld visitation. In fact, one of the factors a court looks at to determine custody is which parent is more likely to cultivate and encourage a relationship with the other parent. Withholding visitation, even without a custody order, tells the court that this parent is more likely to do the same in the future. This behavior can cost you custody, so it is best to allow visits, but do not allow the other parent to take the child alone.

About the Author

Kimberly Turtenwald began writing professionally in 2000. She has written content for various websites, including Lights 2 You, Online Consultation, Corpus Personal Injury and more. Turtenwald studied editing and publishing at Wisconsin Lutheran College.

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