Custody and Visitation Without Divorce

While child custody and visitation issues arise most often as part of a divorce, parents going through a divorce are not the only people who might be involved in a child custody situation. Custody disputes can arise between unmarried parents; grandparents can seek to enforce their rights to visitation with their grandchildren; and in rare cases relatives or others having a close relationship with a child may seek to be awarded custody.

The following is a discussion of the laws and procedures concerning child custody and visitation without divorce.

Custody Without Divorce

When a child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he can take steps to secure some form of arrangement for custody and/or visitation without divorce.

For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples -- child custody and visitation will be resolved either through agreement between the child's parents, or by a family court judge's decision. But, unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues such as division of property and payment of spousal support.

Therefore, the decision-making process is focused almost exclusively on child custody. For this reason, resolution of custody and visitation may be more simplified for unmarried parents. If unmarried parents don't reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution.

Especially when making child custody decisions involving unmarried parents, the family court's primary consideration will be to identify the child's "primary caregiver."

Non-Parental Custody

In some cases, people other than a child's parents may wish to obtain custody -- including relatives like grandparents, aunts, uncles, and close family friends. Some states label such a situation as "non-parental" or "third-party" custody, while other states refer to the third-party's goal in these situations as obtaining "guardianship" of the child. Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody.

The process usually begins when the person seeking custody files a document called a "non-parental custody petition" (or similarly-titled petition) with the court, which sets out the person's relationship to the child, the status of the child's parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody. Usually, a copy of this petition must also be delivered to the child's parents, if they are living and their whereabouts are known.

For example, non-parents seeking custody of a child in the state of Washington must file a non-parent custody petition if the child isn't in either parent's physical custody or neither parent is a suitable custodian. If the legal parents object to your petition, state law requires you to prove on of the following to prevail:

  • The parent(s) is/are unfit; or
  • Placement with an otherwise fit parent would negatively affect the child's growth and development.

Grandparents' Rights to Visitation

In addition to seeking custody of children in some situations, grandparents may also wish to enforce their right to visitation with their grandchildren, if that right is being interfered with by the child's parent(s), i.e. after a divorce or separation. All 50 states and the District of Columbia have some variation of a law protecting grandparents' right to visitation with their grandchildren.

Determining Custody and Visitation Without Divorce? Call an Attorney

Custody disputes can be highly emotional and procedurally complicated. The assistance of a qualified attorney can help ensure that you obtain the custody and visitation terms you are seeking. Find an experienced child custody attorney near you and get some peace of mind.

Next Steps

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