How Can Custody Be Established Without a Judgment?

by Mary Jane Freeman Google

Often parents do not to want the legal system involved in their family affairs, especially when it comes to their kids. However, establishing custody without an official court judgment is not the easiest or the most efficient route. As divorcing parents, it is far simpler to have the court establish a custody order as part of your divorce decree. You and your spouse can even limit the court's involvement by reaching a custody agreement on your own and simply submitting it to the court for approval.

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Types of Custody

Custody comes in two forms: physical and legal. Although they may go by different names depending on the jurisdiction, all states recognize the distinction between the two. Physical custody represents where a child resides, while legal custody represents a parent's right to make important decisions about the child's welfare, such as religion, schooling and healthcare. A common custody arrangement is one in which both parents share legal custody and one parent has sole or primary physical custody. In this scenario, the parent without physical custody, commonly known as the noncustodial parent, has visitation rights and pays child support. However, custody arrangements can come in different forms. When drafting a custody agreement, you can choose the arrangement that best works for your family dynamic.


Children born during a marriage are presumed to be the offspring of the father. As such, both parents have equal custody rights to the child. This is true even if you are separated from your spouse and your child has resided with his other parent for a period of time. If are in the process of divorce, or have yet to file, you and your spouse are still free to establish a custody arrangement on your own. To increase the likelihood of the enforcement of your agreement, you should put it in writing and both you and the other parent should sign it, preferably in front of a notary. You can later submit this agreement to the court hearing your divorce case and have it incorporated into your divorce decree. Or, you can submit the agreement to your local family court and ask the court to make it into an official custody order. So long as the terms serve your child's best interests, the court will do so.


As part of the divorce, the court must resolve all marital issues, such as property distribution, alimony, child support and custody, before it can issue your divorce decree. If you don't want the court to decide custody on your behalf, you and your spouse must draft your own agreement. The terms should detail and describe the living arrangements you desire for your children, a visitation and holiday schedule, transportation arrangements, as well as how you will make decisions concerning the children and resolve disagreements. Once your agreement is ready, you should submit it to the court for review. If the terms are fair and serve the best interests of your child, the court will approve the agreement and incorporate it into your divorce decree. Once that happens, it becomes an enforceable court order.


Although you and your spouse may intend to reach a custody agreement on your own, it may not be possible if you're unable to move past any disagreements. When this happens, the court steps in and makes the custody decision for you. Regardless of the state in which you reside, the standard every family and divorce court uses is "the best interests of the child" standard. To establish a custody arrangement that meets this requirement, the court will look at a variety of factors, which typically include the child's wishes if he is mature or of a certain age, each parent's relationship with the child and ability to provide for his needs, the mental and physical health of the parties, any history of substance abuse or domestic violence, and each parent's willingness to encourage the other parent's relationship with the child.