Children are not born with court orders saying who has custody, nor does the court rush an order over to the hospital. As long as both parents live with and raise the child together, or mother raises the child alone with father’s consent, the lack of a court order is not a problem. But what happens when the parents decide not to continue living together or father changes his mind and no longer wants mother to raise the child alone? This blog discusses who has custody of a child if there is no court order in Indiana.
Custody of a child, absent a court order, depends on whether or not the child’s parents were married at the time of the child’s birth, or shortly before the child's birth. If a man is married to the child’s biological mother at the time of birth, or the child is born within 300 days of the termination of the marriage, he is presumed to be the child’s biological father. In this case, both parents have custody of the child until a court orders otherwise. When a man is not married to the child’s biological mother at the time of birth, he may execute a paternity affidavit, creating a presumption that he is the child’s biological father, however mother still has sole physical custody of the child, until a court orders otherwise.
When both parents have custody of a child, they each have an equal right to keep the child. If the parties are separated and cannot agree on custody, one of them will need to file for a legal separation or divorce to establish custody and parenting time. Otherwise, an endless game of hide-and-seek may ensue, as whoever currently has the child, may keep the child. In this situation, either parent may remove the child from the state or even the country, as they have a legal right to custody and there is no court order preventing the child’s removal.
If a child’s parents are not married, but living together, when the child is born, they may continue to do so without seeking a court order determining paternity, custody, or parenting time. Afterall, as long as they are living and raising their child together, there really is no need for a court order. It is when the parties decide not to continue living together that problems generally arise. Although Indiana Code provides that mother has sole custody of the child until a court orders otherwise, police responding to a call from mother because father has taken the child and refuses to return him or her, will very likely say that the issue is a civil, not a criminal, matter, and everyone needs to contact their attorney. The child will usually then be left with father.
A father who has been absent from the child’s life, allowing mother to raise the child alone, may experience much more difficulty seeing the child, and could have criminal charges brought against him if he takes or attempts to keep the child without mother’s permission. When the parties have not been living together as a couple, and father has not been a part of the child’s life, the police are less inclined to consider taking the child because of a simple domestic dispute instead of a crime. This is particularly true if father never signed a paternity affidavit and/or mother denies that he is the biological father of the child.
It should be noted that a child who was adopted by the parties during a marriage is considered the biological child of them both, and they share equal rights to custody of the child. A child adopted by only one of the parties, either when they have never been married to one another, or before their marriage, is the biological child only of that parent, who has sole physical custody of the child. Along those same lines, a stepparent has no legal custody rights unless he or she has adopted the child.
If you are separated from your spouse, it is advisable that you obtain a custody and parenting time order. Even if you are not having any disagreements now, should one arise in the future, you will be glad that you already have that court order. For those who are attempting to reconcile and do not want a divorce, legal separation is a great alternative. You can stay married and obtain a custody and parenting time order from the court. If you have a child with someone to whom you have never been married and are now living separately, a custody, parenting time, and support order can help prevent future issues, should you and your child’s other parent not continue to agree on matters regarding your child.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.