When the parents of a child separate, divorce, or when one parent dies, child custody issues can often arise. There are two aspects to child custody — legal and physical custody. Parents with legal custody rights make major life decisions on behalf of the child. These decisions typically involve very important aspects of the child’s health, safety, and welfare. 

Examples of such decisions include decisions as to what kind of schooling, medical care, and religious instruction the child receives. Parents with physical custody rights are those who are physically present with the child at the child’s residence. The parent who spends the majority of the time with the child or children has “primary physical custody” and is referred to as the “primary custodial parent.”

What is the Difference Between a Custodial and a Non-Custodial Parent?

Courts award primary physical custody to a parent under what is referred to as a joint physical custody arrangement. This arrangement defines the rights and obligations of each parent with respect to a child. Under this particular child custody arrangement, joint physical custody, the child will reside with one parent at certain times, and will reside with the other parent at different times. 

For example, a child or children may reside with one parent during weekdays, and with the other parent on weekends. The parent who is not the primary custodial parent (in this instance, the one who resides with the child on weekends) is referred to, simply, as a custodial parent.

A custodial parent can be distinguished from a non-custodial parent. A non-custodial parent does not have joint custodial rights (there is no joint custody arrangement); the other parent is awarded sole physical custody under a court order. The non-custodial parent is entitled only to visitation rights. 

Is the Primary Custodial Parent Likely to Have Legal Custody as Well?

As a practical matter, 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 often in a superior position to make daily and emergency decisions regarding the child’s safety and welfare — by sheer virtue of proximity to the child.

What Factors does a Court Consider When Awarding Primary Physical Custody?

In the past, custodial determinations were often made on the basis of stereotypical presumptions about men and women — presumptions that courts today have found to violate the Equal Protection Clause of the 14th Amendment to the United States Constitution

Under what is now referred to as the “tender years doctrine,” also referred to the “tender years presumption,” mothers were, as a societal presumption, regarded as “better equipped” than fathers to raise children. As such, in the past, mothers were commonly granted primary physical custody.  

Over the years, the maternal presumption has been gradually replaced by what is referred to as the “best interests of the child” standard. Under that standard, the child’s mental and physical security, development, and overall well-being are the primary considerations.  

The following factors (among others) are evaluated to determine what custodial arrangement is in the best interests of the child:

  • Each parent’s individual economic circumstances;
  • Each parent’s mental health status;
  • Each parent’s physical health status;
  • The child’s age and gender;
  • Which parent’s residence is in closer proximity to the child’s current school, place of worship, and where the child receives instruction in extracurricular activities. These facts are examined to assess whether placement with a particular parent would unduly disrupt a child’s need for routine and stability; and
  • The child’s own preference as to whom should be the primary custodial parent (if it is determined that the child haves the mental and legal capacity needed to express such a preference). 

Certain circumstances will negatively impact a parent’s ability to demonstrate that their having primary physical custody of the child is in the child’s best interests. In some cases it can eliminate the possibilities outright. These include:

  • Parental physical or emotional abuse;
  • Excessive parental consumption of drugs or alcohol; and
  • Parental inability to care for a child with special needs.

Can the Primary Custodial Parent be Changed to Another Person?

If a parent wishes to modify a child custody order, that parent may request that the court have the order modified. The court will review the request under the best interests of the child standard to determine what modifications, if any, are appropriate. The court makes the determination after giving the parents the opportunity to address the request.

Do I Need a Custodial Rights Lawyer?

Custodial rights play a crucial role in the care and upbringing of the child involved. You may wish to hire an experienced child custody lawyer to assist you if you need advice on child custody and primary custodial parent rights laws. 

Your attorney can help to explain the pertinent laws, address questions or issues you may have regarding custodial parental determination, and represent you in hearings and in court proceedings.