Many married couples who decide to go their separate ways elect not to get a divorce, at least right away. This may be due to religious restrictions or any number of other factors. In some states, couples are required to live apart for a specified period before they can go through with a divorce. Some parents who break up were never married.

So how is child custody for non-divorcing parents determined? Generally, they have the same choice of how to handle it as divorcing parents do. It should be noted, though, that if a couple wasn't married, paternity isn't assumed as it is for married fathers. Therefore, if one or both of the partners question or dispute a man's paternity, that question will need to be settled first.

The Advantages of an Out-of-Court Agreement

As is the case for divorcing parents, it's usually best if the couple can work out a custody arrangement themselves, with the guidance of their attorneys. Family law attorneys can help facilitate this by letting their clients know how a judge in their jurisdiction will likely decide the matter if they take it to court.

Judges are required to act in the best interests of the children. However, parents know their children and the family dynamic better than any judge. Therefore, when both parents have their children's best interests at heart, they can work towards an agreement that will consider their children's unique personalities and needs.

Putting Custody in the Hands of a Judge

In most states, it's no longer automatically assumed that the mother should have primary custody. A judge will generally look at the fitness of both parents to care for the children, including any history of substance abuse or other issues that would impact a parent's ability to take care of a child. Of course, judges are human beings with their own beliefs and prejudices. Some may not be inclined to give an unmarried father shared custody of a child. These fathers may have to work harder to get custody.

If you need to reach a custody agreement with your ex outside of a divorce, it's essential to have an experienced family law attorney who can help you work toward seeking a custody agreement and parenting plan that are best for your children.