What Is a Custodial Parent?

A custodial parent is the parent who takes care of the minor child for most of the time. This differs from a non-custodial parent, who may have visitation rights or care for the child on a limited basis.

If you are going through a divorce or separation and have children, you need to know what a custodial parent is. Understanding the difference between legal custody and physical custody and how custodial parents are selected helps you navigate decisions and decide if you want to be the custodial parent.

What does custodial parent mean?

A custodial parent is the parent a child spends most of their time with. Their home is the child’s main residence, and this parent handles day-to-day decisions for the child or children. However, there are some important distinctions to be aware of when understanding decisions about custodial parents.

Physical custody vs. legal custody

When it comes to custody of a child, there are two types of child custody involved in a custody agreement or parenting plan.

Physical custody: Refers to how the parents share time; specifically, which parent is responsible for the child's day-to-day care and general supervision. Sometimes, one has primary residential custody, meaning the children spend most of their time at that home. The other has visitation. If only one parent has physical custody of the children, they have sole physical custody. In some situations, parents have equal time with no one having primary physical custody. This is called joint custody of the child since both parents co-parent.

Legal custody: Refers to the responsibility and ability to make decisions about the child’s education, medical care, and religion. Parents often share joint legal custody of the child and have the responsibility to make these important decisions together. One can have sole legal custody and handle these decisions alone.

What is a non-custodial parent?

Most parents use this term to refer to a parent who is not the custodial parent. It means the child can spend time with them but lives with the other parent. Visitation—or access to the child or children—is set up in a court order or parenting plan.

In most divorces, both parents share joint legal custody and make decisions about the child or children together. And if both parents spend time with the child, the parents technically have joint physical custody. In joint custody, the person who is not the primary residential parent is often referred as the non-custodial parent. But this term could also refer to a parent who has no physical access to children. If one person has sole custody, the other is a non-custodial parent.

Custodial parent rights and responsibilities

The primary residential parent, often called the custodial parent, has a variety of rights and responsibilities.

• Daily decision-making: Custodial parents have the right to make decisions about the child's day-to-day life when with them.
• Day-to-day care: When the child is with them, custodial parents are responsible for caring for the child (feeding, supervising, clothing, bathing, and so on) or providing child care in their absence. They manage the daily schedule.
• Important decisions: If a person has sole legal custody, they have the right to make choices about education, health care, and religion without consulting the other parent. If the parents share legal custody, they must consult with the other parent and reach an agreement about what to do.
• Complying with the parenting schedule: If the other parent has visitation, the custodial parent must follow the schedule in the court order. This means having the offspring available for scheduled pick-ups.
• Child support: The custodial parent has the right to seek child support from the non-custodial parent. The payment amount is determined by state guidelines.
• Tax dependents: Normally the parent with primary physical custody claims their kid as a dependent on taxes. However, this is negotiable, and if the primary parent states in writing they won’t claim the child, then non-custodial parents can claim them.

How to become a custodial parent

If you want to become the custodial parent, follow these steps.

1. Consult an attorney

Set up a consultation with a divorce or family law attorney at a law firm of your choice. The attorney can explain your state laws and the legal process involved in determining the best interests of the child. The attorney will file the paperwork and attempt to negotiate a settlement. If a settlement can’t be reached, they take the case to trial where the judge decides.

2. Create a parenting plan

You and your ex may be able to work out a custody agreement together and avoid going to court. If you can’t work this out on your own, you could go to mediation. Your plan will determine legal and physical custody and include a schedule for sharing time. A judge must approve the plan.

3. File a petition for custody

If you cannot reach a compromise on a custody agreement together, you can file a petition for custody or have your attorney do so. Each state has its own forms.

4. Meet the requirements of your area

Each state has its own custody requirements. Some states require you to attempt divorce mediation before moving forward. Others require both parents to attend parenting classes. The court could order a custody evaluation by a mental health professional.

5. Attend court hearings

There will be several courtroom appearances along the way. If you cannot reach a settlement, the case is scheduled for trial. At trial, your attorney presents evidence and testimony to convince the court it is best for the well-being of the child for you to be the custodial parent. The judge decides based on what is in the best interests of the child, each parent's ability, the child's health, and where the child lives currently.

6. Receive the custody order

The judge will issue an order for legal and physical custody. Joint custody is usually ordered. If you are granted parental rights or granted custody, you are required to follow this order.

FAQs about custodial parenting

Can a custodial parent lose custody?

Yes, you can if a court determines it is in the best interest of the child or the child's welfare. Usually, there must be a change in circumstances for the other person to petition the court for a change in custody. Both sides present evidence and witnesses and the judge decides.

What happens if the non-custodial parent does not pay child support?

In many states, child support payments are collected and enforced by a state agency. The non-paying party can have their income withheld, have a tax refund withheld, have a lien placed on their property, or be held in contempt of court. Non-payment of support does not affect visitation rights, however.

What should a custodial parent do if they need to change the custody arrangement?

If a change needs to be made to a custody plan, the first step for custodial parents is to talk to the other party and see if you agree with the changes. If you cannot agree, contact your attorney and file a custody modification case.