How would I legally go about trying to get some sort of custody order in place regarding my son?

I am trying to find legal information regarding custody of a minor child whom was born out of wedlock. I have a 6 year old son and his father and I have not been together for a little over 3 years. He signed the birth certificate when my son was born so I believe paternity has already been established. There is no legal custody order in place but we have been practicing joint custody for the last 3 years. He has him for 2 days 1 week and 5 the next. I would like to amend this custody schedule as I believe it no longer provides stability for our son. His father does not agree with my recommendations. Who currently has custody of our son since there is nothing in writing? What forms to I need to fill out in order to do this, and where would these forms be located? I have contacted the local court system and they told me they didn’t have the forms and wouldn’t give me information.

Asked on October 31, 2011 under Family Law, Kansas


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I strongly urge you to seek help from an attorney in the area on this matter to make sure that it is properly done.  Generally speaking, if you were never married and there is no legal custody order in place you are considered to be the legal guardian of your son. Signing a birth certificate does not necessarily mean that paternity is legally established.  There is only a presumption of paternity that can indeed be rebutted.  However, you have voluntarily entered in to a parenting plan of sorts with his father and that could work in his favor.  Listen, it is always better to compromise and come to an agreement.  If things go to court his father has every right to ask for joint custody both physical and legal.  It is always better for your son too to have the two of you on good terms with each other  Good luck. 

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