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Understanding custody without orders in New Jersey
The best course of action for any parent who is divorcing their spouse or living apart from the other biological parent is to obtain a New Jersey custody order. A custody order determines which parents have legal custody and which parents have physical custody. A formally approved parenting plan/custody agreement sets forth exactly when each child will live with each parent.
What happens if there is no custody agreement can be quite scary. For starters, if there is no custody agreement as to who has custody, then the police or state law enforcement will not be able to intervene forcefully on your behalf. If there is no legal custody agreement as to who has custody, then there is no way for the police to know if your child should be with you or with the other parent. This means that if the father or mother refuses to return the child to you or worse leaves the state, you will need to use the courts to enforce your rights and protect your child.
What happens if there is no custody agreement affects your rights and your child’s in several respects:
- If you and your spouse or co-parent have an informal understanding about when the child should be exchanged, you cannot enforce that understanding unless you obtain a formal custody order.
- If you and your spouse or co-parent have an oral agreement (but not one in writing), then the other parent could deny your right to speak with your child while the child is with the other parent.
- What happens if there is no custody agreement becomes especially nightmarish if the other parent leaves New Jersey. When will you see your child? How can you force a father or mother to return the child to New Jersey?
The question of what happens if there is no custody agreement is generally different if the parents are married or if they are unmarried.
What happens if there is no custody agreement and a father/husband takes the child without the mother’s consent/permission?
If a father has no right to take the child (based on current New Jersey Law), then you should consider:
- Calling an experienced New Jersey lawyer
- Calling the police though it is not clear what they can do without a formal custody agreement. The police could try to locate the child and let you know if the father did indeed take the child.
- Contact National Center for Missing and Exploited Children
Generally, married parents have joint custody of the children which means one parent could take the child, when you’re separate, at any time. If a married parent takes a child without your permission or knowledge, that act could be used against your husband/wife when you do formally request custody of your children. The family law judge can consider past actions in awarding custody and visitation.
Generally, unmarried fathers cannot take a child away from a mother. Unmarried mothers are presumed to have custody of their children – at least until the father proves paternity and files a petition for custody. [I’m not sure if this is the law in NJ?]. Without a custody order, the mother could file criminal charges against the father. The mother could also notify the police who would have the authority to investigate the whereabouts of the child and return the child to the mother.
What happens if there is no custody agreement varies depending on the marital status
As discussed above, there is a presumption that both married parents have joint custody of children and a presumption that only the mother has custody if the parents are not married. If the parents are going through a divorce, then a judge can order temporary custody of the child with one or both parents – while the divorce is pending.
What happens if there is no custody agreement affects the filing of criminal charges. If a parent takes a child when it is clear that he/she does not have custody, the parent could be charged with kidnapping.
Child support and the issue of – what happens if there is no custody agreement
Another issue to review with an experienced New Jersey family lawyer is whether the other parent owes a duty of support if there is not a determination of custody. If parents are married but separated or married and filing for divorce, then generally a parent can seek child support. While the non-custodial parent normally owes a duty to provide financial support for his/her child, the amount of the child support often is based on the child custody agreement. That is because, in fairness, there is a big difference between a child who lives with one parent seven days a week and a child who lives with a parent four days a week. If the parent lives with you seven days a week, the other parent should be more in child support than if the coparent is also providing for the child’s daily needs three days a week.
For this is reason, it is good for both parents to establish child custody because child custody helps to determine the amount of child support. What happens if there is no custody agreement is that a child support order can be entered – but it is generally less firm and less stable than if there is a child custody agreement.
At DeTorres & DeGeorge Family Law, our lawyers have 20 years of family law experience. We understand what happens if there is no custody agreement. We seek to negotiate custody agreements or litigate custody orders in court. Our general advice to clients who ask – what happens if there is no custody agreement is to obtain a custody agreement as soon as possible. To discuss your custody and visitation rights, call us at 908-691-2104 or use our contact form to discuss your rights. We have offices in Clinton and Morristown.
