Custodial Parent Rights

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is a Custodial Parent?

A custodial parent is a parent who is granted custody of a child or children by a judge in a divorce or child custody proceeding. A judge may grant custody as part of an order finalizing a divorce proceeding or in a legal separation. The judge considers a variety of factors when making custody decisions.

These factors include, among others, whether a parent has the financial ability to raise the child, and whether granting custody to one parent is in the child’s best interest.

If a court awards physical custody to only one parent, or if a child lives most of the time with one parent, that parent is known as the child’s custodial parent or primary custodial parent. The two terms essentially mean the same thing.

The most common arrangement is for one parent to have physical custody, because the child will spend most of its time living in the household of that parent, and legal custody jointly to both parents. Then both parents will have the right and responsibility cooperatively to make decisions regarding the child’s welfare.

It is always important to keep in mind that state law governs child custody matters and the law can vary from state to state.

What Rights Do Custodial Parents Have?

There are two types of custody. These are legal custody and physical custody. Custodial rights are typically listed in a document called an “order” that is signed by a judge. This order is legally binding on both parents.

Legal custody allows a parent to make the major life decisions on behalf of the child. These decisions typically involve such aspects of the child’s life as their health, safety, and welfare, such as decisions about education, medical care, and what type of religious affiliation the child will have.

In some situations, a court awards joint legal custody. If joint legal custody is granted, both parents, working collaboratively, have the right to make decisions about how the child is to be raised. Courts do tend to award joint legal custody if the parents show a willingness and ability to work cooperatively with one another in making decisions about child-rearing.

Physical custody is the right of a parent to be physically present with the child where the child lives. The parent who spends the majority of the time with the child or children has “primary physical custody.” The parent with physical custody lives with the child or children

The parent who has primary physical custody of the child is likely to have legal custody as well, since the parent who lives with the child is better positioned to make both everyday and emergency decisions regarding the child’s safety and welfare.

In some cases, parents share physical custody. This is referred to as “joint physical custody.” Under a joint physical custody arrangement, the child will live with one parent at certain times, and with the other parent at different times. For example, a child may live with one parent on weekdays when they attend school, and with the other parent on weekends.

A parent who has both legal and physical custody of a child has what is called “sole custody.” In a sole custody situation, the other parent, who is referred to as the “non-custodial parent” is usually given visitation rights – rights to spend time with the child at time and place to which the parents mutually agree.

Can Both Parents Be Custodial Parents

As mentioned above, parents can have any variation of legal and physical custody. One parent can have legal custody while both parents share physical custody. In this case, the parent with legal custody should make the major decisions regarding the child’s care and welfare, while the child lives with both in their separate households.

It is possible for one parent to have both legal and physical custody and in this case, that parent is said to have sole custody of the child. Another variation is for both parents to have shared legal custody, while one has physical custody.

Yet another option is split custody in which one parent has custody of one child and the other has custody of a second child. This is not favored by courts, but there might be a situation in which it is deemed to be in the best interests of the children. That is always the standard and any of these variations is possible when a judge determines what is in the best interest of the child in a separation or divorce proceeding or as a result of a petition for modification.

What Are the Responsibilities of a Custodial Parent?

The custodial parent’s responsibilities are those that go with serving as the primary caretaker of a child. The parent must maintain secure, stable housing for the child. The parent has to earn an income or realize an income from sources other than employment with which to provide for the child’s care, including adequate nutrition, appropriate clothing, medical care, education, supervision and entertainment.

As the parent with whom the child lives, the custodial parent would have to make sure the child goes to school every day and returns home at the end of the school day. The custodial parent would be the main contact for the school the child attends, so might expect to be contacted by the school regarding routine matters.

One of the main responsibilities of the custodial parent is to manage the visitation schedule with the non-custodial parent. If the custodial parent has sole physical custody, they should still work with the non-custodial parent to arrange a visitation schedule that is convenient for both and especially for the child or children at issue. If the custodial parent shares physical custody with the non-custodial parent, then, again, the custodial parent still wants to work amicably to make a sharing arrangement that works for everyone involved.

Even if the custodial parent has sole legal and physical custody of the child, experts recommend that the custodial parent maintain amicable relations with the non-custodial parent and make every effort to keep the non-custodial parent involved in the decision-making about the child.

So, for example, if the child were to become ill with something more serious than a cold or flu, the custodial parent would want to at least inform the non-custodial parent and possibly confer with them about medical decisions that need to be made.

A custodial parent should also inform the non-custodial parent of any major decisions that the custodial parent is considering. For example, if the custodial parent is thinking of making a major geographical move, the parent should inform the non-custodial parent well ahead of time. Or, if the custodial parent is thinking of enrolling their child in an expensive activity, e.g. private school, or a costly sport hobby, then it would be wise to consult the non-custodial parent, especially if that parent will be expected to contribute to paying for the activity.

What Can I Do to Be Granted Custodial Parent Rights?

A parent who seeks to become a custodial parent can take a number of steps to show a judge that the parent deserves to be granted custodial parent rights. These steps include:

  • Securing and maintaining stable housing: Being able to provide for a child’s need for shelter demonstrates a commitment to the child’s basic safety needs;
  • Earning a stable income: A judge may regard a parent’s having a source or sources of steady, stable income as an indication that the parent can meet the child’s financial needs;
  • Being in close proximity to the child’s school: The closer to the child’s school a parent is, the more likely the parent will be able to respond to emergency situations, attend school activities in which the child participates, and participate in parent-teacher conferences;
  • Being physically available to spend time with the child: A judge prefers that a parent seeking custody demonstrate that the parent can be physically present for the child for as much time as possible. A parent’s ability to be physically present with the child can demonstrate a commitment to the child’s needs. If a parent’s physical residence is a significant distance from where the child lives, or the parent’s schedule does not allow the parent to spend time with the child regularly, a judge is less likely to grant custody to that parent.

Custody decisions are usually included in a decree of divorce at the end of a divorce proceeding. If a person does not currently have either legal or physical custody of a child or children and would like to change the custody or visitation arrangements, the person would have to initiate a petition for custody modification. It would probably need to be based on a change in circumstances. For example, if the custodial parent were to pass away, this would necessitate a change in custody.

What Happens If Custodial Parent Rights are Violated?

A parent who violates a custody order can face legal consequences. Typical examples of violations include:

  • When one parent fails to return a child to the other parent at the time and place specified in a custody order or visitation agreement, the parent guilty of the violation may lose custodial parent rights;
  • When one parent abuses or neglects the child, the parent can lose custodial rights altogether. A judge may even issue a restraining order preventing that parent from having contact with the child. Neglect and abuse may also subject the parent to criminal penalties, including fines and jail time.

Again, if a parent wants to make changes to a child custody order, they may request a modification in court through a petition for a modification of custody. For example, a parent may have only visitation rights and may want to have joint physical custody. The court will review the request and make the modifications, if any, it thinks are appropriate, after giving both parents the opportunity to be heard.

It is also always possible for the parents involved to voluntarily agree to change their custody arrangements, but it would be a good idea to consult an experienced family law attorney in this case and make sure that any voluntary agreement is well documented in writing.

Do I Need a Lawyer for Help with Custodial Parent Rights?

Custodial rights play a critical role in the care and upbringing of the child or children involved. And custody and visitation arrangements have a big effect on the quality of life of the whole family, including parents. So you want to get it right.

If you need advice on custodial parent laws, custody or visitation issues, you should consult an experienced child custody lawyer or an experienced family attorney for assistance. An attorney near you can help to explain the laws, advise you about what rights you have, and can represent you in a court hearing where custodial rights are involved.

You are mostly likely to get the best outcome if you have an experienced lawyer to represent you in all phases of a child custody dispute.


16 people have successfully posted their cases

Find a Lawyer