Who Has Custody Of A Child If There Is No Court Order

Who Has Custody Of A Child If There Is No Court Order

Children are the worst victims of a divorce. Family laws under NY State legislation are designed to promote the “best interest of the child” by giving custody through a legally issued court order. 

But who has custody of a child if there is no court order?

If there is no court order, New York state grants equal physical and legal custody to both parents. Therefore, they are equally responsible for raising the child amicably. 

The custody order can be “Sole” or “Joint”- the arrangement that the court finds most befitting for the child’s benefit will be ordered. For instance, if the father has a history of abuse, the child’s custody is given solely to the mother. 

Types of child Custody

There are two major types of custody:

  • Physical Custody 

Physical custody is residential custody of the child. It is given to the child’s primary caretaker and is more about the “actual physical care and supervision” of a child. If the court orders joint physical custody, then the child spends equal time with each parent. If not, then the child spends more than fifty percent of his or her time with one parent. 

  • Legal Custody

Legal custody gives parents “the right to make important decisions about a child’s care”. These can be integral decisions pertaining to religious upbringing, education, and medical care. If legal custody is joint, the parents will have to communicate for agreement over these significant decisions. However, sole legal custody would entail only “informing” the other parent about these decisions. 

A court order gives well-defined instructions about a child’s custody, but the real dilemma occurs when there is no court order- who actually has the custody of a child?

A judge will consider various factors before deciding what is best for the child by critically evaluating each parent for:

  • Provision of primary care,
  • Providing a loving environment for the child to grow,
  • History of drug or alcohol abuse,
  • Domestic violence against the child or other parent,
  • Neglect of child or another parent,
  • Willingness to maintain healthy relationships and communication with the other parent and
  • Any mental illness deeming the parent unfit for any custodial rights

Who Has Custody Of A Child If There Is No Court Order

If The Parents Are Married

Married parents equally own joint legal custody and joint physical custody of their children, even if there is no court order.

In the absence of a court order, biological and adoptive parents would have 50-50 custodial rights only if they were married when the child was conceived or born. Therefore, they have an equal responsibility towards contributing in major life-impacting decisions and physically providing the child with nourishment and care. 

The parents must possess a marriage license as proof of being married at the child’s birth. They must also present a signed birth certificate of the child to prove parentage. 

This can be harmonious in a friendly environment between ex-spouses but can become a dirty deal if the parents fail to negotiate.

If The Parents Are Unmarried

For unwed mothers, NY law works in favour and they have complete sole legal custody and sole physical custody of the child.

This is until the father claims his Paternity. In this case, the man establishes himself as the legal father, claims custody and visitation rights, and becomes responsible for paying child support.

To establish paternity, both parents must sign the Acknowledgement of Paternity Form to remove any doubts about the status of the biological father. 

In cases where the mother is now married to another spouse, the child’s father can apply for an Order of Filiation from the court. This will give him all the legal rights and responsibilities expected of a father i.e. having custody and visitation and making child support payments.

The court can order genetic testing to establish the biological father in dubious paternity cases. But sometimes, a court might use equitable estoppel to prevent DNA testing. This is based on the assumption that it is more important for a child to maintain a healthy relationship with the person who has acted as a father than knowing their true identity.

Visitation Problems If There Are No Court Orders

If the relationship between co-parents is amicable, hassle-free visitation procedures can follow. 

However, problems often arise if there is ambiguity about who has the custody of a child with no court order.

Here is a list of some obstacles that might arise in the absence of court orders:

  • There might be the threat of one parent taking away the child out-of-state to delay any visitation from the other parent deliberately. 
  • An inconsistent parent may refuse visitation- an act that will NOT be counted as a legal offence without a court order. 
  • The children might become emotionally distressed and confused without a proper parenting plan in place. With a custody order, they will know where to spend their weekends, weekdays etc. 
  • Sometimes, an influential parent may brainwash the child into refusing visitation. With a court order in place, custody enforcement can be executed. This can remedy any emotional distance and conflict between the child and noncustodial parent.
  • Every state in the USA accepts custody orders placed by another state. So, if a parent tries to move away with a child, it would be considered a legal offense. They can be charged with a felony and arrested by the State Police. 
  • In the case of abusive parents, courts often arrange for supervised visitation to protect the minor from any damage. This may not be the case if no court order exists. 
  • There will be no guidelines for the ex-spouses to follow, and the bickering between parents can create a hostile environment, making things even more bitter. 

How To Get A Custody Order

The matters relating to custody of a child with no court order can be taken to court(Supreme Court if custody is part of a divorce or Family Courts if it is a separate case) or can be settled through mediation

However, when there is animosity, rage and hostility between parents, it is better to take proceedings to court.

Here are the steps to obtain a custody order

  1. File a petition with the court by providing details of both parents and proof of marriage. You can do this by yourself or take the services of a family lawyer near you. In cases where an order is in place but not being followed, a Custody Enforcement petition can be filed. 

To make changes to an already existing court custody order, a Custody/Visitation Modification has to be filed. Both of these petitions can be filed electronically through DIY programs at https://nycourts.gov/courthelp/DIY/familyCourt.shtml or in person with the Clerk.

  1. Suppose there is a threat of relocation or physical harm from one parent. In that case, the other can file for an “ex parte” or expedited emergency hearing from the court after presenting sufficient evidence of these grounds. 
  2. After “serving” the other partner, the court decides on a preliminary hearing to hear the viewpoints of both parties. 
  3. There is a possible evaluation of both partners and possibly the child for any issues of mental illness, drug abuse, aggressiveness, and parental alienation.
  4. Before taking the trial to court, a pretrial conference is set up so that both parties can give mutual settlement the last chance. If not, the case moves to the court for trial. 
  5. A trial can last up to weeks or months. The judge might also take the child’s preference into account. 
  6. The judge signs a final custody order after critical evaluation. This parenting plan is enforced in NY till the child turns 21 or is emancipated under exceptional circumstances. 

This can be taken to higher courts for modification if parents disagree with the settlements defined. 

How Long Does It Take To Get Custody Of A Child?

The time it takes to get custody of a child depends on the court with which the petition is being filed. 

  • If the case is being filed in the Supreme Court as part of the Divorce petition, the preliminary hearing is arranged almost after 4 to 6 weeks of filing. 
  • Custody cases are given high preference in Family Courts, and the first hearing is set about 3 weeks after you file a custody petition.
  • Mediation takes the least time if parents settle on a mutual agreement as soon as the issue of custody arises. 

Generally, all custody cases in NY take six to 18 months (in extreme cases). A trial can last for weeks when a hostile co-parent refuses to negotiate.


Does the mother automatically have sole custody in New York?

Only an unwed mother has sole legal and physical custody of the child in New York until and unless both parents sign affiliation of paternity. 

This includes signing whatever document is at the hospital or providing it later. He can then put forward demands for custody and visitations. 

On the flip side, the father may now have to pay the court-approved child support payments toward the child’s well-being.