Do I have custody of my child?
People care for children every single day and haven’t been to court to have custody and visitation determined. In most cases, those people don’t really worry about custody; they just have their kid, and they take care of him (or her).
Things only really start to become a problem when there’s turmoil in the relationship between the parents. When the parties break up, for example, or when some formerly uninvolved parent resurfaces and suddenly wants time. I also often hear of parents (typically, the uninvolved kind) suddenly demanding time, refusing to allow the other parent to travel with the child, or otherwise behaving erratically.
Then, suddenly, custody is an issue, and I hear questions like, “Do I have custody?” and “Does he have custody?” And sometimes, I get weirdly specific questions, like, “Can he just write a note telling me that I don’t have permission to travel with our child?” or something similar. Things can get high stress really, really fast, and it’s easy to wonder what rights and responsibilities you have in your particular situation.
Since you’ve cared for your child all along, it rankles a bit to have someone tell you that you can or can’t do something with the child that you’ve literally always been able to do (and have done!) before. You can’t help but wonder if this is true, and how to behave within this new set of “rules” that you’re suddenly experiencing. Well, that’s where an attorney comes in!
Do I have custody of my child?
Until a custody order or agreement is entered by the court, the child’s biological parents have custody of him or her. That doesn’t mean that your custody is superior to your child’s father; technically, until there’s some order in place governing custody, your rights are equal. Either one (or both) of you can travel with the child, enroll the child in school, or basically do whatever you like with the child. You don’t have to ask the other parent’s permission (unless it’s something like getting the child a passport where the rules require the participation of both parents) to go somewhere or do something.
But what happens when the parents can’t agree?
Still, either one of you has the right to do what you choose, until there’s an order (an agreement between the two of you can be a court order, too!) the governs how custody and visitation should be shared between the two of you. At that point, you can do what you want so long as you don’t violate the order. So, if you have joint legal custody, you’ll have to collaborate with your child’s father as it relates to decisions related to education, religious upbringing, and non-emergency medical care. You won’t be empowered to make those kinds of decisions on your own, and, if you and your child’s father reach an impasse, you may need to go to court to let a judge cast the deciding vote.
Likewise, you won’t be able to travel with the child to the extent that it is either prohibited by the agreement/court order or to the extent that it impacts the child’s other parent’s rights to parenting time under the agreement/court order. If his parenting time begins on Wednesday, you can’t take the child to visit family in Kentucky through Friday – or, at least, not without your child’s father giving the say-so. And, if you’re limited to travel within the state of Virginia, or travel when the child’s father is aware ahead of time of itinerary and contact information, you won’t be able to go to Kentucky at all. Of course, those are just examples – and, most of the time, parties ARE able to travel with the child, even under a custody and visitation agreement or order, it’s just that they have to follow the specific rules prescribed therein.
We don’t have a custody agreement or order. What can I do?
You’re not limited if there’s no order – but, of course, neither is your child’s father, so I think it’s important to fight fair. You could take the child, but consider, too, how that would impact both your future custody case, and your child’s father’s attitude towards you. Right now, you’re both feeling insecure, and a little extra cooperation can go a long ways towards establishing a successful coparenting relationship.
Why do you care? Well, the angrier he is, the more he may fight you in court – and the less you may find that the two of you are able to cooperate as it relates to some of the more important issues in the care and upbringing of your child. At the beginning, a lot of these reactions are visceral and rooted in fear; neither wants to feel that the other can just take the child away and keep them from access to the child. That’s pretty terrifying stuff – in fact, I’d venture to say that fear of that feeling is, in large part, what led you here today.
So, I do always caution women I speak with to balance the need to travel (say, to visit family for the holidays, or just to get away from the negative energy at home) with what it could do to the case. Will it make him super angry and extra aggressive? Is there a better way to handle this?
If there’s no custody and visitation order in place, though, you are free to take the child. No police officers are going to, say, storm your parent’s house in the middle of the right, rush in, and take the crying child from your arms. They can’t until there’s an order in place. There’s no such thing as parental kidnapping until it violates an existing court order or agreement.
Of course, the same goes for him, too – so if he takes the child, you won’t be able to use the police to get him or her back. You could potentially file a petition for emergency custody, but, again, you run into the whole issue of potentially escalating tensions. Is it worth it? Will it make reaching an agreement in your custody case (which is infinitely preferable to litigating) even less likely? Will it make litigation necessary? Will it increase the cost, time, and blood pressure points involved?
There are a lot of considerations here, and you’d do well to think about it from a variety of different angles – potentially while also consulting with a divorce and/or custody attorney – before you act. It’s easy to act hastily, in fear, and without thought to the potential consequences, but that’s not often a good idea in custody cases.
For more information, to request a copy of our custody book, to get more information about our custody seminar, or to schedule a confidential consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.