Local law enforcement is called out to a domestic violence scene between two unmarried partners, male and female. They are the parents of a 9 month old breastfeeding infant. They all live together at the same residence. They have never been married. There has never been a court order regarding custody. The father's name is on the birth certificate. There has never been a legal acknowledgment of paternity (through legitimation, court order, etc.).
Because the has never been a court order on custody and because the parents have never been married, there is a question as to how the officers in the field should have handled the "default custody rights" (or something like that) at the time of the incident. The father was not arrested, and the mother (appearing battered) stated she simply wanted to take the baby and go stay with her parents.
The primary officer told her she was not allowed to take the baby away from the house without the father's permission. There was some disagreement between the primary and secondary officers as well as the sergeant on hand as to whether or not to arrest the father and also as to the legality of restricting the mother from removing the baby from the home.
Most officers are of the opinion that in the absence of a court order, custody order, marriage or any other thing determining legal rights to the child, that custody would immediately default to the mother until such a time it could be determined by the courts. However, it has been difficult to locate any documentation in the criminal statutes or civil law statutes, one way or the other, to determine what law is in place to handle situations such as the above.
Can anyone help me or point me in the right direction? I'm really looking for something that can be pointed to in educated law enforcement, like statute numbers, etc.
I really appreciate any help. Thanks so much!