Q: In NE, is the mother awarded temporary custody after spliting from the Childs father if they weren't married?
My best friend has a 3 year old and was never married to her father. The are no longer together but have not went to court for custody. Does she automatically get temporary custody of the child until the go in front of a judge?
A: Yes. Absent anything to the contrary, natural mom of a child born out of wedlock is considered custodial parent by Nebraska law, but there are a number of factors that may change this, such as whether paternity was established by acknowledgment of the father, whether the parents are residing together, etc. Practically speaking, law enforcement considers custody of a child a civil matter and are not going to take children from either parent without a court order (and even then they sometimes refuse). However, the best action for both parents is to either obtain pre-hearing parenting time agreements in writing or a court order for temporary parenting time before giving up possession of a child. Whether mother or father, I highly recommend at least consulting with an attorney confidentially about the specific facts to determine best course of action as custody is so very fact-specific. Best wishes!
A: It depends on the judge. There is a split on this.
Some judges rely on older caselaw that states that the mother has automatic custody when the parents aren't married and there isn't a custody order.
Other judges state that if paternity has been established (such as by the father's name being on the birth certificate) then the parents have equal custody rights until a court order is entered.
Some judges pick and choose which to follow depending on how they want to handle the case.
Often the parent who physically has possession of the child gets to keep possession of the child, absent an agreement of the parties or a court order regarding custody, even if this isn't what is best for the child.
If the parents can't work together to agree on a parenting time schedule, it may be best for the parent to seek a custody order from the court and establish a set parenting time schedule.
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