Whether you are a married or unmarried parent, your baby isn’t born with custody rules in place. In fact, you and the other parent have equal rights when it comes to caring for your child. 

But when things start to come apart between you and the other parent, you need to have an agreement on how you are going to handle visitation and custody. When you don’t have a custody order in place, trouble often follows. 

What is a Custody Order?

In dividing up the custody of your child, either you and the other parent can come to an agreement or the judge will do it for you in the form of an order. 

If you and the other parent come to an agreement, your agreement will be incorporated into the final child custody order. It will be recognized and treated the same way as an order from the court. 

The custody order will contain exactly how you and the other parent are going to handle custody of your child. This is true whether you have sole or joint legal custody, and whether physical custody of your child is primarily to one parent, shared, or split. 

When you’re beginning the custody process, you should know that custody isn’t something that’s either won or lost. Unless there was some type of abuse, neglect, or drug and/or alcohol use, each of you will share custody in some way. 

What if There’s No Custody Order in Place?

If there isn’t a court order in effect that handles child custody and visitation rights, you and the other parent may have equal rights and responsibilities with regard to your child, depending on the laws of your state. 

Additionally, without a custody order in place, you or the other parent may deny parenting time with your child until a custody order takes control. While you can try to discuss visitation with the other parent to see if you can reach an agreement, in order to enforce your rights as a parent, you will ultimately need a child custody order in place. 

What is in the Best Interest of Your Child?

If you become involved in any type of custody matter, you will hear the phrase, “best interest of the child.” This is a legal phrase that deals with certain factors that determine exactly what is in the best interest of the child.  

While these may vary from state to state, some of the most common factors a court may look at to determine what is in the best interest of your child include:

  • Age, mental capacity, and physical condition of your child, considering how your child’s developmental needs can and will change.
  • The age, physical condition, and mental capacity of both parents.
  • The relationship each parent has with their child. Consideration may be given to the positive involvement in your child’s life, and each parent’s abilities to accurately meet and assess the physical, intellectual, and emotional needs of your child.
  • What the needs of your child are, with consideration given to other important relationships in your child’s life including peers, extended family, and friends.
  • What roles you and the other parent have had and will continue to have in the care and raising of your child.
  • How much each parent will support their child having contact with the other parent, and whether the other parent has been unreasonable in denying visitation or access to the child.
  • The willingness and ability of each parent to have a close and continuing relationship with the child, and how willing each parent is to cooperate and resolve any issues regarding the child that may arise.
  • The preference of your child, if the court has found that they are at an age of understanding and have the intelligence and experience to say what their preference is.
  • If there is a history of abuse.
  • Other factors that the court may deem necessary to determine a form of custody that is in the best interest of your child. 

How Do You Get a Custody Order?

There are a few different ways you can go about getting a custody order, but in most cases, it’s either a case of negotiation or litigation.

If you choose to negotiate with the other parent to reach a decision, this agreement will be in writing and signed by both parents. If you choose to litigate, the judge will decide child custody and enter an order that you and the other parent must follow.

What if Custody is Part of My Divorce?

If you are getting a divorce and have to also consider custody matters, you will either negotiate custody through mediation, negotiation, or collaboration, or the judge will decide for you. 

The ultimate goal of collaboration, mediation, and/or negotiation is the same: a signed agreement regarding child custody. 

If you go before a judge in a litigated child custody case, it’s possible you may agree on some issues but want the court to decide the other, less amiable issues.

What if it’s Just Custody?

If your case just deals with child custody and not a divorce as well, it may be a bit easier. You will still be able to go through the mediation and negotiation process in an attempt to come to an agreement on your own.

While you can litigate custody matters and visitation in court, the judge will have the last word and issue an order that both of you have to follow. Such an order may not always be in your favor. 

What is the Advantage to Negotiating My Child Custody Agreement?

If you and the other parent decide to negotiate your own child custody agreement, you will have a lot more freedom to come up with a plan that is tailor-made to your individual situation and your child. 

A judge will only briefly hear evidence and make a ruling, and likely will not consider the details you may believe your case deserves. 

Do We Really Need a Child Custody Order?

Child custody orders are extremely important because they not only keep everyone on the same page, but they can keep you out of trouble. 

For example, one of the main factors the court will look at is whether you or the other parent is denying access to or visitation with your child. To just think it will all work out is extremely risky; and sadly, it doesn’t always work out. It’s best to have a child custody order in place as a matter of protection.

If you do deny the other parent access to or visitation with their child and they take you to court, the court doesn’t look favorably upon a parent who tries to keep their child away from the other parent. In fact, you could lose custody if you participate in such behavior. 

With a child custody order in place, you have your time with your child and the other parent has theirs. Remember, this isn’t about you; it’s about what is best for your child, and the courts generally believe that a child benefits from spending time with both of their parents. 

What if I Only Have a Child Support Order?

If you only have a child support order and not a custody order, you should read your child support order carefully. There should be a clause that both you and the other parent need to inform each other or the court of their address.

A child support order doesn’t necessarily mean that you have visitation rights or child custody rights. This is why having a custody order in place is so important.

When Can My Ex Take My Child?

The answer is it depends. If you have sole physical custody, it’s generally not legal for your ex to take your child. However, if you are married and there isn’t any court order regarding custody, then it is legal for the other parent to take your child.

If you are divorced and your ex has sole physical custody, it is legal for them to take your child, but it can get complicated if you share physical custody. In that case, you should read your child custody order to find out when it’s legal for your ex to have your child. 


It’s vitally important for both parents to have a child custody and visitation order in place to avoid disputes, and it’s also in the best interest of your child to have both of you in their lives. You should also attempt to come to your own child custody agreement, because allowing the courts to do it for you could mean you don’t get exactly what you want. 

In all child custody matters, you should have a family law attorney on your side to be a strong advocate for you and to ensure your parental rights aren’t violated.