By Divorce.com staff
Updated Jan 20, 2023
If you’re getting divorced, there is much to consider regarding your child’s best interest. A custody agreement and child support agreement can help you to plan for your child’s future while creating a predictable structure in your child’s life.
Here’s what to know about custody and the responsibilities of being a custodial parent.
What Is Child Custody?
Child custody can refer to two situations: where a child will live and who will make critical decisions for the child.
Physical and legal custody are different things. Some parents share both parental rights, some will assume responsibility for one of the types of custody (decision-making but not child care and living), and some parents will not be awarded responsibility at all. It simply depends on the circumstances of your situation.
Physical Custody of a Child
Physical custody is used in child custody cases to determine where a child will live. Joint physical custody scenarios are common, meaning a child will have an opportunity to live with both parents. The time a child spends with each of their parents will be divided based on the family’s circumstances.
Primary physical custody means that a child stays with one parent more than the other.
Children typically stay with one parent while in school and may stay with their other parent on the weekends. They may spend more time with that other parent during holidays, school breaks, and summer vacations when it’s less likely to disrupt their education or routine.
Sole physical custody is when a child lives with one parent exclusively. This may or may not involve visitation orders, a visitation schedule, and whether the other parent is allowed to see the child. If contact with that parent may harm the child, the court may appoint a third party to sit in and monitor the situation during visitation time.
Legal custody refers to which parent can make critical decisions for a child, like a school or health care. Joint legal custody is common as well. This is when both parents discuss what’s in the child’s best interest and agree when making these big decisions.
Sole legal custody is when one parent no longer has the right to make important decisions for their child’s welfare. If the court finds that the parent doesn’t have the child’s best interest in mind, is negligent, or is unreliable, sole legal custody often gets awarded to the parent viewed as more capable of handling serious situations.
Custody Roles Can Be Divided
Your custody agreement may not always be joint, sole, or primary across the board. One parent may have sole physical custody, but parents may share joint legal custody. It all depends on what’s in the best interest of the child.
Courts will often do everything in their power to avoid severing relationships between parents and children when it isn’t necessary. Your custody agreement may reflect careful maneuvering designed to assure that both parents can safely play a supportive role in a child’s life.
What Does a Custodial Parent Do?
Custodial parents are the parent the child spends the most time with. Parents who have sole custody or primary custody are considered custodial parents. In a joint custody situation, both parents will likely be regarded as custodial parents.
A custodial parent will fulfill their responsibilities as outlined in the custody agreement. It’s often no different from traditional parenting. You’ll love, support, and care for your child.
Custodial parents often receive child support payments from non-custodial parents. These payments make meeting your child’s needs easier on a single income.
What Does a Non-Custodial Parent Do?
A non-custodial parent has limited roles and responsibilities. Non-custodial parents in situations where the other parent has primary physical custody will still be able to see their children according to a schedule decided within the custody agreement. This usually means visiting with the child every weekend or every other weekend. The child may stay overnight during this time.
A non-custodial parent in a sole custody arrangement may be allowed visitation with a child. They may also be responsible for making court-ordered child support payments, even if they aren’t allowed to contact the child or make decisions regarding the child’s welfare.
Do You Need a Child Custody Agreement in Your Divorce?
A child custody agreement isn’t mandatory in divorce, but it can be helpful. If your youngest child is 17, pursuing a child custody agreement may not be worthwhile. The agreement would have a minimal impact before the child turns 18 and is legally allowed to make decisions independently.
If your children are young or if they have special needs, a child custody agreement is in the best interest of the child and the parents. A custody agreement provides structure and allows parents to plan for their child’s well-being.
Custody agreements are also necessary when it isn’t safe for one parent to have unsupervised contact with a child. If one parent is dealing with substance abuse issues, their personal life can negatively impact a child’s life.
Custody agreements protect children who might otherwise live in an unsafe or unstable environment.
How Is Child Support Decided?
The custodial parent won’t have to pay child support because the child lives with them. Their money doesn’t need to go through the court. The non-custodial parent or the parent with the least amount of physical custody of the child pays custody.
For example, if a child only stays with their parent every other weekend, that parent is likely to pay child support to the parent the child lives with most often.
The parent responsible will pay court-ordered monthly child support payments. Many factors will play a role in determining how much child support a parent has to pay. The parent’s monthly income and the child's needs are two of the most significant factors.
Can You Change a Custody Agreement?
You can change child custody agreements and child support orders, but they’re easier to change when parents agree to the proposed change.
Changes in life circumstances can prompt changes in agreements. For example, if one parent accepts a remote work position, they might have more time to spend with their child. They may want to modify the custody agreement so that they receive more parenting time. Both parents can discuss what they’d like to do and file for a modification of their agreement.
There may also become circumstances where one parent was fit to have substantial unsupervised parenting time, but something happens. If one parent were to develop a substance abuse or alcohol use issue, the other parent might feel the need to protect their child. They can file to modify a custody agreement to protect their child’s welfare.
You can modify child support agreements if someone loses a job, gets a new job, remarries, or becomes disabled. You can also change them if one parent moves out of state and can no longer regularly commit to a shared custody agreement.
What Happens If You Don’t Pay Child Support?
Child support must be paid by order of the court. The penalties for failing to pay child support may vary from state to state. It’s common to face additional fees and interest for being late on your payment. In some cases, the court can put a lien on property you own. They may also take money directly from your paycheck.
Most states also have the right to suspend your driver’s license for failing to pay child support. In rare cases, some parents can be jailed for several months if they fail to pay child support and don’t cooperate with the associated court process.
There is no way to be forgiven for back child support. Even bankruptcy can’t erase it. If you’re in arrears, you will always be in debt until you’ve paid the amount in full. It’s best to take early action to avoid a serious situation.
If you’re worried, you won’t be able to afford your child support payments or if you can’t make an upcoming payment, contact the court immediately. The court may have resources to help you, and your honesty will be seen as a gesture of good faith.
Final Thoughts on Custodial Parenthood
Essentially, the custodial parent is the parent who has their child for the most time. This is the parent who is legally considered their child’s primary caregiver, although both parents can be considered custodial parents in 50/50 split joint custody arrangements.
Custodial parents have more responsibilities than non-custodial parents, as they provide their child with the basic stability they need to thrive such as a home, an education, and beyond. They have the right to care for and make decisions for their children, but they also have a legal responsibility to keep non-custodial parents informed in many co-parenting arrangements.
While joint custody agreements mean that each parent makes major decisions relating to the child’s upbringing, custody roles may be split across the board. It all comes down to the decisions you’ve made in your custody agreement.
At the end of the day, both parents in a co-parenting relationship have the same responsibilities: to love, care, and support their children.