Who Has Custody of the Child if there is no Court Order?
Custody will depend on whether the parents of the child are married or not.
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If the parents of the child are married...
If the parents of the child are divorced...
If the parents are not married and were never married...
Parents often wonder who has legal custody of a child if there is no court order for custody of that child. It depends on whether the parents of the child have been married or not.
IF THE PARENTS OF THE CHILD ARE MARRIED, and there is no court order for custody of the child, then each parent has equal rights to custody of the child. Basically, whoever has the child can keep the child. However, if the other parent gets the child for some reason (such as a visit) then that parent can keep the child. Each parent has equal custody rights until a court issues a custody order.
If the parents are married and they don't agree on where the child will live, one of the parents will need to file a divorce or a custody action to get a court order on custody of the child.
IF THE PARENTS OF THE CHILD ARE DIVORCED, the divorce order should say who has custody of the child. The most recent court order on custody is the one that should be followed. You can contact the court where the divorce was finalized to get a copy of the most recent court order on custody.
IF THE PARENTS ARE NOT MARRIED AND WERE NEVER MARRIED, and there is no court order for custody of the child, then the mother of the child has legal custody of that child until a court says otherwise. In other words, the mother of a child born outside of marriage has sole legal custody of the child unless a court has issued an order giving someone else custody.
If the parents are not married and there is no court order and the father would like custody of the child, the father will need to establish paternity and ask the court for a custody order. If the parents are not married and there is no court order and the father will not return the child to the mother, the mother should first ask the local police or sheriff for help. The mother can show the police or sheriff the Indiana law that says the mother has custody in this situation. To see a copy of the law, go to here.If the police or sheriff will not help, the mother can file a case in court asking for the return of the child.
LSC Code 1310100
Last revised 11-02
