Non-Divorce Custody and Visitation

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. Following is a discussion of custody and visitation matters involving unmarried parties.

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 custody and visitation rights.

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, so 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 do not 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 caretaker.”

Custody When You’re Not a Parent

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. (Note: Other states refer to the third-party’s goal in these situations as obtaining “guardianship” of the child, rather than custody.)

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. See examples of non-parental custody requirements and petitions are Custody by Non-Parent; Nonparental Custody of a Child; and Guardianship of Minor Children.

Grandparents’ Rights to Visitation

In addition to seeking custody of children in some situations, grandparents may also wish to enforce their legal 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 Utah have some variation of a law protecting grandparents’ right to visitation with their grandchildren.