Although child custody and visitation rights are common issues during a divorce proceeding, they are not exclusive to married couples. Even unmarried couples can have custody disputes, as their children need to be placed somewhere after their relationship has ended. The possibilities involved in a non-divorce custody case can be similar to a divorce custody case, wherein custody of the child and visitation rights are either decided between the parents or determined by a family court judge if the parents fail to come to an agreement.
The primary distinction between a non-divorce and a divorce child custody case is that the parents do not have to negotiate on other matters which are not related to custody(e.g. division of assets, spousal support). Thereby, making the case generally simpler and centered on child custody.
As with all cases, the biggest consideration in a child custody battle is the child’s best interests. Other possible factors may include seeing who the primary caretaker of the child is, as well as the moral character and financial capacity of the parents.
Rights and responsibilities of the unmarried parents
Parental rights involve the legal rights and responsibilities that a parent has to a child, such as making significant decisions relating to the life and well-being of a child. In most states, if the parents are not married, the law entails that the sole physical custody is awarded to the child’s mother unless the father appeals. Even if such a request is made and some steps are taken to gain custody, the court hardly ever grants physical custody of the child to the father. He is, however, given rights to visitation. In some rare cases, it is possible for a father to gain sole physical custody if he can prove to the court that the mother is incapable of taking care of the child.
Granting custody to a non-parent
There are some instances where outside parties request for custody of a child, including grandparents, relatives or close friends of the family. These individuals must be able to prove that having custody is in the child’s best interest. The states refer to this differently, although a common term used is “non-parental” custody or “guardianship”.
Regardless of the term used, the laws in most states have provisions for granting child custody to other people than the parents. Those who want to pursue non-parental custody must complete the following procedures:
- The individual must file a custody application or a “non-parental custody petition” with the court. This document should entail a detailed description of the person’s relationship to the child, the reasons for seeking custody and the status of the parents (e.g. deceased, living).
- A copy of the petition must be served to the parents if they are alive or their whereabouts are established.
- The parents can object to the petition.
The court will then determine if the non-parental applicant is deemed worthy of gaining child custody.
Visitation rights of the grandparents
Under certain situations, the child’s grandparents have the right to apply for visitation rights. If their legal right to visit their grandchildren is being prevented by the parent/s, the grandparents can enforce this right by applying to the court. All the states have laws that protect the visitation rights of grandparents.
An attorney’s role in a non-divorce child custody case
The best option when dealing with a child custody in a non-divorce case is to consult with an attorney that specializes in child custody. Discussing the details of the circumstances is important, with the lawyer knowing which laws apply to your situation. He or she can then give you an idea of how the courts typically come up with a decision in a case like yours. Moreover, since laws differ from state to state, the lawyer can advise you about the specific provisions in your state of residence.