Custody without Court

Many parents that separate, or have never been married to each other, often want to solve custody issues outside of court. Reasons vary, but most people seeking solutions that don’t involve an official court process agree on how they want to divide their parental responsibilities and do not think a court needs to sign off on how they choose to raise their children.

While parenting and raising children is a fundamental right (most famously discussed in the Supreme Court case Troxel v. Granville) that the government has relatively little say in, there are aspects that are regulated. Safety and situations where child abuse is occurring are obvious examples. The state can also step in when questions of how to divide parental rights and responsibilities cannot be agreed upon. Most of the time, this happens within the process of a divorce or dissolution. But what happens when two parents aren’t married to each other (and never have been) or when the parents are just separated, and no actual divorce has or will take place?

In these situations, many people wish to settle custody with a simple agreement – much like a contract. If you can make contracts for all kinds of major decisions, such as buying a house or business, why can you not also privately agree on something that should be, well, private?

The answer is not so simple – and it mainly comes down to enforceability. While you can sue someone who doesn’t hold up their end of a financial bargain, custody of a child by an agreement that has not been filed and ordered by a court is not legally binding – children, of course, are not property and different standards apply to agreements regarding children.

There are also starting points in custody that create the need for a court order regarding parenting. Under Ohio law, married parents have joint legal and residential custody and unmarried females who give birth to a child automatically have sole legal and residential custody (Ohio Revised Code 3109.042). To change these defaults, a court must order differently. And to change those, the court must have a legal reason to do so.

With married parents, a change to the marriage must occur – whether it is a divorce, dissolution, or legal separation. Married parents who live separately are not legally separated and therefore the parenting rights and responsibilities cannot be split. Something has to change that relationship before the court has authority to make a custody order. If the parents can agree on how they want to divide custody, they can submit a parenting plan to the court along with the other documents needed for divorce, dissolution, or legal separation. If the court agrees that the parenting plan is in the best interest of the child, the court will order it in a custody decree. Then, if one parent doesn’t follow it, the other parent has a way to enforce it

If the parents are not married, a similar process occurs, but it goes through juvenile court – this entails slightly different procedures, and the agreement must still be in the best interest of the child. However, because the mother has automatic sole custody under the law, no other action has to accompany a petition to change custody.

“Going to court” can be intimidating and it certainly does seem like it will automatically set up people to “fight,” but there are many ways to keep the process amicable, and a good attorney can help with any concerns and make the process less intimidating. Parenting plans are highly customizable and can be as specific as needed – some cover all sorts of minor details so that the expectations of each parent are clearly defined, and some are more general. Of course, speaking with an attorney is always important to make sure whatever agreement parents wish to make complies with applicable laws and all the details are covered. And each parent can rest assured that it can be enforced.

If you have questions on custody, divorce, dissolution, or legal separation, contact EQUES to discuss your options with an attorney.

Written by Attorney Nikki Hamsher

Leave a Comment

Your email address will not be published. Required fields are marked *