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Parent Rights: Custodial Parent vs. Non-Custodial Parent

By Divorce.com staff
Updated Dec 26, 2022

Custody arrangements can change the dynamics of parenthood. When parents are married, they’re automatically equally entitled to the same rights and responsibilities involved in caring for their child.

This arrangement will sometimes stay the same after a divorce, like in situations of 50/50 joint custody.

When custody arrangements change, one parent may have more access to the child than the other parent. This can impact the way co-parenting works, but it doesn’t always mean that one parent is less important than the other.

Here’s what you need to understand about custodial parent vs. non-custodial parent rights.

What Is Custody

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

The parent who spends the most time with a child is often referred to as the custodial parent. The parent who has the child for fewer overnight visits is referred to as the non-custodial parent.

The term non-custodial parent can be misleading because it appears to imply that the parent has somehow lost custody of their child. This may be true in some cases, but it usually isn’t the case.

You’ll sometimes see terms like primary residential parent used instead of custodial parent and secondary residential parent used instead of non-custodial parent. These terms are often a more accurate way to describe child custody.

The term non-custodial parent can be used to refer to parents who have lost physical or legal custody of their children. If parents have lost custody and the court won’t permit them to care for their children or make decisions in their child’s life, the non-custodial parent has effectively lost their parental rights.

What Is Legal Custody?

Legal custody refers to a parent’s ability to make choices that impact their child’s well-being. This can mean deciding what school a child will attend or making medical decisions regarding care providers or treatment plans.

It also refers to lower-stakes situations, like enrolling the child in tutoring or extracurricular activities. Parents with legal custody can decide whether or not to permit their child to attend gymnastics classes or piano lessons.

What Is Physical Custody?

Physical custody refers to where a child will live. More specifically, it refers to where a child will sleep at night.

Custody refers to a child’s overnight visits with a parent. There can be sole physical custody, where a child only sleeps at one parent’s house. With primary physical custody, a child mostly lives in one home but can sometimes visit the other parent’s home overnight. Many parents divide primary custody into weekday and weekend care.

Joint custody (or 50/50 custody) occurs when children live in both homes. If parents live close together, it usually isn’t logistically complicated to utilize joint custody. As long as children can just as easily make it to school from both homes, it’s easy to divide custody in half.

There may be times when one parent needs to assume slightly more than 50% custody, and that’s normal. As long as the time is very close to being evenly split, the arrangement is still considered joint custody.

What Are the Rights of a Custodial Parent?

The rights of a custodial parent as the rights of any parent before a divorce. Custodial parents have the rights that all natural parents have when married. The only difference is the obligations they have relating to the non-custodial parent.

The Right To Care for Their Child

Custodial parents are responsible for most childcare responsibilities. Since their children spend time living in their homes, they’re responsible for feeding, bathing, caring for, and disciplining their children most of the time. It’s their job to provide their children with a clean, safe place to live and balanced meals.

The Right To Make Decisions for Their Child

Custodial parents have the right to choose where their children go to school, what activities or additional lessons they participate in, which tutors they use, the doctors they see, and the treatments they receive.

The Responsibility To Keep the Non-Custodial Parent Informed

Unless there is a no-contact order in place or the other parent has forfeited or legally lost their parental right, the custodial parent is responsible for communicating with the non-custodial parent about their shared child.

This is especially important when communicating matters relating to healthcare or education. If you share legal custody of your child with their other parent, they’re entitled to help you make important decisions. They need to be informed of the situation and their options, and they have to be given an opportunity to present their opinion.

Parents need to make these decisions together. One parent cannot come to a decision and inform the other parent later. They need to converse before the decision is made unless the situation is a legitimate emergency, like taking the child to a hospital for a broken leg.

What Are the Rights of a Non-Custodial Parent?

Non-custodial parents often have the same rights that custodial parents do. They’ll exercise those rights in a different way. They may have less physical time with their children, but they’re still entitled to play an important role in their child’s life.

Some non-custodial parents lose their ability to visit their children or make decisions regarding their child’s welfare. It all depends on the circumstances of the divorce and that parent’s history with their child.

The Right To Be Informed

If there is no protective order in place and the non-custodial parent hasn’t lost or forfeited their parental rights, the custodial parent is required to keep the non-custodial parent informed about their child. If the child gets sick or is having trouble in school, the non-custodial parent has the right to know.

The non-custodial parent also has the right to know where the child is, which means that the custodial parent must inform the non-custodial parent before they leave for vacation or if the child will be spending the night in a different place.

Parents without parental rights don’t need to be informed. If you’ve lost your parental rights, you may need to begin the process of restoring your rights before you’re entitled to information about your child.

Physical Custody With Non-Custodial Parents

In cases where one parent has primary custody, the non-custodial parent can still physically care for their children. The children may stay with them on weekends or during breaks from school. During this time, they have all the same rights that any other parent would have.

In cases where one parent has sole custody, a non-custodial parent may still be entitled to visit their child. These visits usually aren’t overnight. They’ll take place during the day, and they may be supervised by a person the court appoints to oversee the visit.

Some non-custodial parents aren’t entitled to see their children at all. This only occurs in cases where the non-custodial parent has abused or neglected the child in some way. The court finds it unsafe to put children in the same environment as their abuser.

Legal Custody With Non-Custodial Parents

Non-custodial parents can still have legal custody of their children. Even if a child doesn’t live with their non-custodial parent, their non-custodial parent is still entitled to an opinion regarding important matters in the child’s life.

When a non-custodial parent has joint legal custody of their children, they’re allowed to make decisions regarding things like the child’s healthcare and education.

Non-custodial parents without legal custody aren’t entitled to make decisions for their children. The parent with sole legal custody of the child will tend to all of the child’s healthcare and educational needs. They’ll be responsible for making decisions that shape the child’s future, and they don’t need to consult with the parent who doesn’t have any legal custody of the child.

What Happens When Parents Don’t Agree?

If a parent who doesn’t have physical or legal custody of a child doesn’t agree with the decisions the other parent is making, there isn’t much to do. They would need to obtain custody of the child in order for their opinion to have weight in the situation.

This involves filing a new petition with the court and proving you have a legitimate reason to change your custody arrangement.

If parents who share legal custody of a child don’t agree on a particular matter, it needs to be settled in mediation or through litigation. This may not always be possible in urgent situations.

If the matter is time sensitive, like a child’s need to have an appendix removed before it ruptures, it’s always better for one parent to do what’s in the best interest of the child without waiting to through a legal process to decide.

If your ex disagrees with a life-saving decision you’ve made, let them attempt to take the matter to court. If the decision you made had life-saving value for your child, you have nothing to worry about.

If the debate you’re having is whether or not to allow your 17-year-old child to get a tattoo, you can choose to take the situation to mediation or litigation. In circumstances like this, it may not be worthwhile to push your luck. Your child may turn 18 before you even reach a decision, and they can get the tattoo anyway.

If the decision is something major, like which school is better prepared to handle your child’s academic needs, it may be worth taking the matter to mediation. If mediation doesn’t work, try arbitration. In arbitration, you each hire a lawyer. The lawyers will debate on your behalf with your interests in mind until they reach a conclusion you both need to abide by.

It’s very rare that you’ll need to take matters back to court. If you do, the matter will likely become a change of custody. If one parent loses their legal or physical custody of the child, the scope of their rights will be limited. This will afford the other parent more decision-making power.

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