Do You Really Need a Custody Order If You All Get Along?

When parents separate or are no longer in a relationship, one of the biggest questions they may face is how they will share time with their child and make important decisions about the child’s life.

Some parents are able to work together without involving the court. Others may benefit from having a custody order that clearly establishes each party’s rights and responsibilities.

So, what exactly is a custody order, and what happens if you do not have one?

What is a custody order? 

A custody order is a legal document issued by a judge that describes the rights and responsibilities of the child’s caregivers and is based on what is in the best interests of the child. It typically states the type of physical or legal custody each party has. 

Physical custody is the right to care for the child. Legal custody is the right to make important decisions regarding the child, such as education, religious, and, medical decisions, etc. Physical and legal custody can be held jointly, meaning the parties share; or solely, which means one party mainly cares for the child and/or can make decisions alone. There are various arrangements that are available. 

Custody orders can look very different depending on the needs and circumstances of each family. A custody order can lay out which party will have the child during the school year, school breaks, holidays, etc. It can restrict who can be around the child, what each party can do when they have the child, and a party be allowed communication with the child. 

What does it mean when no custody order is in place?

If no custody order is in place, both parties have equal rights to the child. Parents may create their own informal schedule and agree on where their child will stay, how holidays will be divided, and how decisions will be made. The parties can come to some type of verbal or informal agreement, however the agreement will not be legally enforceable. An informal parenting arrangement does not have the same enforcement mechanisms as a court order. If the parents later disagree or one parent stops following the arrangement, the other parent generally cannot simply ask the court to hold that parent in contempt of an order that does not exist.

How does a custody order get put in place?

There are a couple ways to get a custody order put in place. If the parties can come to an agreement regarding a custody arrangement, the judge will use the arrangement, and call it a consent order. A judge may order mediation between parties before entering a custody order to help solve any issues, give the parties the chance to create a consent, etc. 

In some cases, the judge will enter a temporary custody order which gives the judge time to see if the schedule works for the child and/or gives a party time to gather evidence to change the custody order. If the court deems the temporary order to be sufficient, then they will make it a permanent custody order.

A permanent custody order is what the parties follow long term. In order to change a permanent custody order there has to be a showing by one parent that there has been a "significant change in circumstances.” There is no definition to provide for a “significant change in circumstances,” but instead the court looks at each individual case, and bases it off of the circumstances at the time of the original order.

Enforcement of a custody order

Once a permanent custody order is put in place, the parties must follow the specific conditions it states. If a party does not follow the custody order, then the other party may be able to show the court that the party is in contempt. If the court finds a party in contempt, they can make a party pay fees, including the other party's attorney fees, correct the contempt, and in some cases… jail time.

Benefits and risks of not having custody order vs. having a custody order

There can be advantages to handling parenting arrangements without litigation, particularly when parents have a cooperative relationship.

Some benefits are:

1. Preventing information or issues regarding the child and the parties from being discussed in open court or becoming public record.

2. Not having court involvement, which allows the parties to make decisions together instead of a judge and prevents a party from being held in contempt. 

3. More flexibility. With a custody order, you typically have to get the judge’s permission to change important things within the order. With no order, the parties can change what they want when they please. 

4. Inexpensive. With no court involvement, you avoid filing fees, court fees, travel expenses, lawyer fees, having to take time off for court hearings, etc. 

   
   

But, what are the risks of not having a custody order? The flexibility of an informal arrangement can also create uncertainty.

Potential risks are: 

1. Without a custody order, law enforcement can provide very little help when it comes to matters involving parties and the child. Since both parties have equal rights, they can keep the child for a longer amount of time without the other party's consent and law enforcement can not intervene. 

2. No consequences. Law enforcement can provide very little help when there is no custody order in place, therefore one parent can decide to move out of the county or state with the child without the other parent’s permission. It may require going to court to file for an emergency custody order to get the child back. 

3. No structure. Without a custody order, many issues are up in the air and may have to be discussed each year, such as how holidays and breaks will be split, how summer break will be split, and how the school week will be split. 

4. No set rules around the child. Without a court order, each party can essentially do whatever they want or bring whoever they want around the child, within the law of course. 

 How Is a Custody Order Put in Place?

There are several ways a custody case can result in an order.

1. Agreement Between the Parties

Parents do not necessarily have to fight through a trial to obtain a custody order.

If the parties reach an agreement, that agreement may be submitted to the court and entered as a consent order. Once entered by the court, the parties are required to follow its terms.

2. Custody Mediation

In North Carolina, parties making custody claims are generally required to participate in the court's custody mediation program unless mediation is waived by a judge.

Mediation gives parents an opportunity to try to resolve custody issues without having a judge decide those issues for them. If the parties reach an agreement through court-ordered mediation, a Parenting Agreement can be prepared and, once properly signed and approved by the judge, becomes a court order.

3. A Custody Hearing

If the parties cannot reach an agreement, the case may proceed before a judge.

The judge will hear evidence and determine what custody arrangement is in the child's best interests based on the circumstances presented to the court.

What Is a Temporary Custody Order?

A court may enter a temporary custody order in appropriate circumstances while the custody case remains pending.

It is important, however, not to assume that every order labeled “temporary” automatically becomes permanent after a particular amount of time. North Carolina law distinguishes between temporary and permanent custody orders, and that distinction can significantly affect the legal standard that applies later.

If you already have a custody order and are unsure whether it is temporary or permanent, an attorney can review the order and explain how it may affect your options.

Can a Permanent Custody Order Be Changed?

Yes, but a parent generally cannot change a permanent custody order simply because they now prefer a different arrangement.

To modify an existing permanent custody order, the party requesting the change generally must first establish a substantial change in circumstances affecting the welfare of the child. If that threshold is met, the court then considers whether modifying custody is in the child's best interests.

What qualifies as a substantial change in circumstances depends on the particular facts of the case.

This means that a change in a parent's life does not automatically result in a change to the custody order.

 So, Do You Need a Custody Order?

There is no single answer that works for every family.

Some parents successfully co-parent for years without a custody order. The flexibility and reduced court involvement may work well when both parents communicate effectively and consistently honor their agreements.

For other families, having a custody order provides valuable structure, predictability, and enforceable expectations.

The key question is not simply whether you and the other parent agree right now. It is also important to consider what would happen if that cooperation changed.

Need help with a custody order? 

If you or anyone you know is interested in finding out more information regarding a custody order or need help with a custody order matter, Aligned Advocates is here to help. Schedule a consultation with our office to discuss your circumstances and learn more about your legal options.