Can You Agree to Child Custody Without a Court Order?

When families fall apart, you and your partner may want to simply go your separate ways without the formality and expense of a child custody case. But could you be cutting yourself off from important parental rights by doing it yourself? Or can you agree to child custody without a court order?

Who Gets Child Custody Without a Court Order?

There are a lot of reasons to put off going to court when a family relationship breaks down. Maybe you and your spouse are still trying to work things out. Maybe an out-of-state move means you don’t yet qualify for jurisdiction in your new home state. Maybe you just want to let emotions cool before serving your partner with paperwork.

If you are trying to skip the courthouse, it’s important to know who gets child custody by default. That way you can make an informed decision on whether to wait, or to file something now to protect your rights.

If the Parents are Married

If you are married to your child’s other parent (and if that marriage happened before the child was conceived and born), then you and your spouse are each assumed to be the legal parent of any children born during that marriage. Michigan child custody law says that both mom and dad share custodial rights to the children.

That means either mom or dad has the right to take custody of the children when the spouses separate. Both parents are assumed to share legal and physical custody until one of you goes to court to either:

  • Establish a formal child custody order, or
  • Get a divorce.

If the Parents were Never Married

If you and your child’s other parent were never married, the questions of parental rights and child custody get a bit more complicated, especially for biological fathers, and non-biological parent in LGBT families.

For families with involved biological fathers, the most important question is whether you signed an Affidavit of Parentage after the child was born. This is normally done at the hospital or before the child’s birth certificate is issued. If the father’s name is listed on the birth certificate, chances are you did sign an Affidavit of Parentage. If that’s true, then the biological father and the mother are each the legal parents of the child and share parental rights. However, unlike married couples, the Acknowledgment of Parentage Act says that the mother is granted initial legal and physical custody of the child until there is a child custody order saying otherwise.

If you have not signed an Affidavit of Parentage, or if you are the non-biological parent in an LGBT family, then unfortunately you are not considered a legal parent of that child and do not have any parental rights if you and the child’s mother separate. Biological fathers can establish their parental rights through a Complaint for Paternity with the court, or by signing an Affidavit of Parentage.

However, unfortunately, non-biological and unmarried parents do not have any parental rights in Michigan. A pair of decisions against lesbian non-biological mothers mean that unless you were married to the child’s biological parent, you will not be able to assert your rights as an equitable parent.

Can You Agree to Child Custody Without a Court Order?

What if you don’t like the default custody arrangement? If you are a legal parent, can you agree to child custody without a court order?

Child Custody Agreements are Better

As a family lawyer, I love it when parents can agree on a custody and parenting time arrangement for their children. I tell my clients that if they can agree to something that works for them, it will almost always be better than what a family court judge will come up with after a hearing. And it’s true. Judges can only make decisions based on the information presented to them. But you know all the details of your family circumstances.

For example, you know that your 3-year-old has a bedtime of 8:00 pm, but if you don’t start the wind down process by 6:30, you are going to be fighting with him until after 10:00. Or maybe you know that cheer-leading practice gets out at 4:30 and mom’s employer gives her trouble if she has to leave before 5:00. All those little details can get lost in a contested hearing, so you could end up with a custody order that doesn’t work for you.

But You Still Need a Child Custody Order

Even if you and your co-parent agree 100% on issues of child custody and parenting time today, you still need a child custody order. That’s because circumstances change, and what both sides are happy with now may not be copacetic in 6 months or 6 years. Once the agreed upon arrangement breaks down, you could be stuck with the default rules by the time you head back to court.

Making Judges Recognize Your Child Custody Agreement

Michigan law says that the Family Court has exclusive jurisdiction over child custody issues within the state. If you have entered an informal child custody agreement but have never gotten a child custody order, the court has the authority to start from scratch in determining the best interests of the children. The parents’ history and the children’s schedule will be considered as part of that determination, but if there has been a period where one or the other parent has denied access, all your careful work may not hold much water.

Enforcing Your Child Custody Agreement

The other reason you need a child custody order comes down to enforcement. A court will not enforce a child custody agreement that has not been converted into a child custody order. Without a formal child custody order, you are acting on the assumption that both of you will continue to honor your agreement even when life changes.

This isn’t just a concern over what happens if the other parent changes his or her mind, either. Doctors, teachers, coaches, and other authorities within your child’s life are trained to look to a child custody order (or the child-related parts of a Judgment of Divorce) to decide who to talk to about child-related concerns. Even if you and your co-parent agree that you should be included in your child’s orthodontics appointment or parent-teacher conferences, without a formal child custody order, the professional may refuse to speak to you.

Getting a Child Custody Order When Everyone Agrees

The good news is that as long as you and your co-parent agree on what should happen with your children, you probably won’t have to work too hard to get the court to enter a child custody order according to the terms you both worked out. Most Michigan family court judges will honor a complaint for entry of child custody order that says the parties have agreed on what is in the best interests of the child and would like the court to enter an order with those terms. You will probably need to go to court at least once to get the order signed, but it doesn’t have to be a long, drawn out, adversarial case.


Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parties reach child custody agreements and protect those agreements by obtaining child custody orders from the court. If you need help protecting your parental rights, contact Schmidt & Long today to schedule a consultation.