What do you do if the child custody agreement was not filed?

AskAvvo: What if the child custody agreement was never filed?


AskAvvo: What if the child custody agreement was never filed?

Q: What happens if there is a child custody agreement, but it never gets filed with the courts?


A: If a child custody agreement is never filed with the court, there is no court order. This means that it isn’t enforceable. 


In most states, the mother has automatic custody rights if the parents were never married and there is no custody agreement in place. 


Provided paternity has been established, some states allow both parents to have equal rights over the child or children if there is no approved child custody agreement. In the eyes of the law, no parent is more valuable than the other. 


But, conflicts are sure to arise regarding time with children and decision-making responsibilities. It’s always a good idea to have a court order for child custody. 


What is a custody order?

A custody order describes how the custody of your children will be handled. It begins with a child custody agreement, which is something you can negotiate with your child’s other parent. In the absence of an agreement, the judge will make the decision for you. 


In most jurisdictions, judges will make custody decisions that are in the best interests of the child. Some of the factors they consider include:

  • The age and mental condition of the child;
  • The age, mental, and physical condition of each parent;
  • The needs of the child;
  • The role that each parent has played in the child’s upbringing;
  • The willingness of each parent to support the other’s continuing contact and relationship with the child; and
  • Any other factors the court deems proper and necessary. 

The custody order describes who gets sole or joint custody and whether the physical custody of your child will go to one parent or be shared. In most cases, custody is shared between parents to some extent. Children will live primarily with one parent but spend time with the other. Either one parent will get to make decisions about school, medical care, and religion, or both parents will share in these responsibilities. 


How to get a custody order in place

You can establish a custody agreement through either negotiation or litigation. Whichever path you take, the signed agreement must be approved by the family law court before it is valid and enforceable. You’ll want to have a signed and stamped copy in your possession so that you know it was properly filed and approved. 


If your custody case is part of your divorce

If you’re going through a divorce and have minor children, you’ll include filing for child custody as part of that process. In most cases, these agreements are handled through mediation, but you may need to litigate if the parties can’t agree. 


If you and the other parent aren’t married

Assuming you and the child’s other parent were never married, you can pursue a child custody agreement in a similar manner. Negotiating an agreement outside the courtroom is the best option, but you can also let the judge decide if you’re unable to reach a consensus. 


If you and your same-sex partner aren’t married

When an unmarried same-sex couple with children decides to dissolve the relationship, sorting out the issues related to custody can be complicated. State laws that apply to same-sex couples are continuing to evolve, but the biological parent will generally have presumptive custody rights.


Unless the parent has adopted the child, some courts may not grant a parental judgment. Other courts will permit visitation rights if that parent played an essential role in the child’s life. 


Can we just figure out custody without a court order?

Custody orders are vital because they provide parents with peace of mind and keep everyone out of trouble. There’s always the temptation to say, “we’ll work things out,” and this can be effective with some matters. But, you are taking an incredible risk when it comes to the custody and wellbeing of your children by not having an agreement formalized. 


Whether you have a negotiated child custody agreement that was never approved by the courts or need to start from scratch, contact an experienced family law lawyer in your area to protect your parental rights


Additional Resources:

Getting your child through college after a divorce

Who gets child custody when unmarried couples split up?

7 steps to a positive child custody outcome