The Father of My Child Has My Son & Won't Give Him to Me, and Neither of Us Have Custody

By Beverly Bird

If you were never married to your child’s father, you probably have legal custody without realizing it, even if you don’t have a court order. If you were married but have separated, you also have legal custody without a court order. However, even with legal custody, there may be difficulties in forcing your child's father to return him to you.

Unmarried Parents

In most states, if you were not married to your child’s father when he was born and haven’t married him since that time, you have sole physical and legal custody of your son. This is a “presumption,” meaning the law assumes it to be true. You don’t have to do anything to establish custody. A presumption puts the burden on your child’s father to file a petition with the court to establish his own custody rights. In most states, he has no rights unless or until he does this.

Custody and Marriage

If you and your son’s father were married, but neither of you has filed for divorce yet, both of you have physical and legal custody. This only changes if one of you files a petition with the court asking a judge to grant custody to one or the other. Until that happens, the law treats custody of your child the same as if you were still happily married. You both have an equal right to spend time with your son. In most states, this is true even if you didn’t marry until after he was born.

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Custody Order

Even though you may technically have legal custody, without a court order, the father's refusal to return your son is not a criminal matter, but rather a family court or domestic relations one. Thus, police really can't do anything for you. You must petition the court, asking it to officially award you custody. Filing an ordinary motion for custody can take weeks. Fortunately, in most states, filing a motion to show cause will hasten things along considerably in an emergency. A judge will usually order your child’s father to appear in court within a few days to explain why he should not have to return your son to you. If you were never married, the judge will probably order your son returned to you immediately until the court holds a hearing to decide the father's custody rights. If you were married, a judge might not return your son to you immediately because both you and his father have equal rights to custody. However, he will still schedule a hearing to decide custody.


The courts in most states take a very dim view of a parent who tries to interfere with his child’s relationship with the other parent. After you file an order to show cause, or a complaint for custody or divorce, make sure the judge is aware of what your son’s father has done because his behavior may work against him in a custody decision. You might have a different judge than the one in charge of your show cause hearing, so it's up to you to give him the history of your case. If you were never married and your child’s father can’t prove you’re an unfit parent, most courts will not award him custody instead of you.

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Father's Rights in a Child's Last Name Change


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Can Someone Have Sole Custody if the Other Parent Abandoned?

In most states, sole custody means that you have both legal and physical custody of your child -- she lives with you full-time and you make all decisions regarding her upbringing, education and health. If her other parent abandons you -- and by extension, your child – this automatically gives you de facto custody, which means you’ve got custody in practice, if not by court order. You can use this to your advantage to gain sole custody in your divorce decree as well.

Who Has the Right to Custody During Noncustodial Visitation?

Custody trumps visitation. It is never changed or altered simply because a child is visiting with her non-custodial parent. The rights of a parent who has sole legal custody, sole physical custody or both remain intact until and unless a court modifies them by issuing a new custody order. Whether a child sleeps over at a friend’s house, her grandparent’s house or her non-custodial parent’s house, the custodial parent still has custody during those times, according to the terms of the court order. However, this does not mean the custodial parent always has unilateral control over everything involving her child.

Who Gets Kids Before a Custody Hearing?

As long as you and your spouse are living together, you both have custody of your kids. Divorce may be on the horizon. One of you might even have already filed a petition with the court. It doesn’t matter, provided both of you are still residing under the same roof with your kids. Custody usually does not become an issue until one of you moves out, or one of you seeks an order to pave the way for moving out at a later time.

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