When There’s No Court Order, Who Has Custody Of The Child In Naples, Florida.

Last updated on August 2, 2022

In Florida, Before there’s been a filing in the courts, there is no official piece of paper you can point to that establishes who makes decisions for the child and who the child should be spending time with.

The automatic determination of the custody of a child hinges on whether the parents were married or not at the time of the child’s birth.

If they parents were married at the time of the child’s birth, they are both considered to be the natural parents of the child with equal rights to the child.  In fact, there are no laws governing this situation without a court order.  This is why when a parent removes a child to another state or even another country, it is not considered kidnapping.  The parent is just exercising their equal rights over the child.

When unmarried people have a child, the child’s biological father does not have an automatic right to equal custody as he would if he was married to the child’s mother.  The unmarried mother has all the custody, responsibilities and parenting time of a parent with sole custody.

“The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” Fla. Stat. Sec. 744.301(1)

The unmarried father has no rights to the child until something is filed. The only right the unmarried father has is the right to seek a court order to be considered the legal father and thereby acquire equal parenting rights as though he were a married father.

What this typically means is that until there is a filing and an order the unmarried father has parenting time with the child whenever the mother allows it. The unmarried father eventually realizes this is an untenable situation and then the unmarried father files something to register himself as the legal father and thereby have a judge, not just the mother, determine his parenting time and responsibility.

Whether married or unmarried, whatever agreement the two parents had reached before going to court and getting an order is referred to as the “status quo.”  When the parties do go to court, the judge and/or guardian ad litem will be strongly biased towards maintaining that status quo.  This is especially true if the children are thriving emotionally and academically under the status quo.

If the child lives in Naples, Florida, the correct court to file the parentage action in is the Collier County court.

The first order that gets entered regarding custody, parenting time and parenting responsibilities seems like a momentous occasion that could set the tone for the entire case but the situation isn’t that stark.

The first order that is entered regarding custody and/or parenting time is almost always entered as a temporary order.  A temporary order can always be revisited with the courts not treating the first order as any kind of prevailing law that should be followed.  Hall v. Mall, 32 So. 3d 682 (Fla. 1st DCA 2010).

So, don’t be afraid to get something on file and get a temporary order even if you don’t believe you’d get the time and responsibilities that you’d deserve.

It is only when a final order is entered that the order is treated with deference in any future modification attempts.

If there’s no order, chances are you need an order.  Call my Naples, Florida family law office now to learn how to get that order and the stability you and your loved ones need.

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