In divorce cases in which children are involved, custody must be decided. Child custody can be categorized as legal custody and physical custody. Parents who are granted legal custody rights are responsible for making major life decisions on behalf of their child, such as decisions regarding the child’s health, safety, and welfare.
A parent who is granted physical custody rights are physically present with the child, at the child’s residence. A primary custodial parent definition under family laws would be the parent who spends the majority of the time with the child, and is said to have primary physical custody.
Some benefits of primary physical custody include having a significant amount of time to spend with your child, and generally being the party to receive child support payments. The custodial parent is responsible for the child’s day-to-day upbringing, along with the following:
- Adhering to the visitation schedule;
- Tracking child support payments to ensure the child is being cared for financially;
- Maintain communication with the noncustodial parent;
- Always ensure that the child’s best interests are being kept at the forefront of all decision making;
- Informing the court and the noncustodial parent when taking the child across state lines; and
- Consulting with the noncustodial parent before agreeing to major medical or child care expenses on behalf of the child.
What Is the Difference Between a Custodial and a Non-Custodial Parent? Is the Primary Custodial Parent Likely to Have Legal Custody as Well?
The difference between a custodial parent and a noncustodial parent can be clarified by discussing the different types of custody arrangements. A joint physical custody arrangement, such as joint legal custody, refers to both parents having an equal say in the responsibilities and decisions regarding the child’s upbringing.
In joint custody arrangements, both parents are highly involved in their child’s life. Shared custody would refer to a specific type of joint custody in which the child is allowed to have frequent and continuing contact with both parents.
Additionally, each parent generally has physical custody of the child fifty percent of the time. The child may reside with one parent during weekdays, and with the other parent on weekends. As such, the parent who is not the primary custodial parent is simply referred to as a custodial parent. In the above example, this would be the one who resides with the child on weekends.
A custodial parent can be distinguished from a non-custodial parent in that a non-custodial parent does not have joint custodial rights. What this means is that there is no joint custody arrangement; rather, the other parent is awarded sole physical custody by the court. The non-custodial parent will only receive visitation rights.
In terms of practicality, the parent who has primary physical custody of the child is also likely to have legal custody. This is due to the fact that the parent who lives with the child is often considered to be in a superior position to make daily and emergency decisions regarding the child’s safety and welfare. This assumption is largely based on their proximity to the child.
What Factors Does a Court Consider When Awarding Primary Physical Custody?
When determining child custody rights, the court will consider the child’s best interests above either parent’s personal preference. The main standard used is the child’s best interest standard, which dictates that courts may only make decisions related to child custody if those decisions benefit the child. In some highly specific cases, a judge has the authority to override what is in the child’s best interest due to an extreme change within the family.
An example of this would be if the child’s primary caregiver suddenly becomes disabled, or is otherwise unable to care for the child to the fullest. Generally, it would be in the child’s best interest to remain with their primary caregiver. However, the judge presiding over the case may rule that it would actually be in the child’s best interest to grant custody rights to the most capable parent.
Previously, custody was determined on the basis of stereotypical presumptions about cisgender men and women. The general presumption was that a cisgender woman is the automatic best choice for custodial parent due to their “innate nurturing abilities.” These are presumptions that courts today have determined violate the Equal Protection Clause of the 14th Amendment to the United States Constitution.
The maternal presumption has been gradually replaced by the child’s best interest standard. It is now the child’s mental and physical security, as well as their development and overall well-being, that are the primary factors in awarding primary physical custody.
The following factors some of the most common examples of factors that are evaluated to in order determine what sort of custodial arrangement is in the best interests of the child:
- Each parent’s individual economic circumstances, such as their financial status and which parent holds health insurance for the child;
- Each parent’s mental health status, as well as their physical health status;
- The child’s age and gender;
- Which parent’s residence is closer to the child’s current school, place of worship, and extracurricular activities; and
- The child’s own preference, if it is determined that the child has the mental and legal capacity needed to express such a preference.
It is important to note that certain circumstances will negatively impact a parent’s claim to having primary physical custody of the child. In some cases, these circumstances entirely can eliminate the possibility of being awarded custody. These circumstances most commonly include:
- History of parental physical or emotional abuse;
- Excessive parental consumption of drugs or alcohol; and/or
- The parent is unable to care for a child with special needs.
Can the Primary Custodial Parent be Changed to Another Person?
For the primary custodial rights to be granted to another person, such as the other parent, there would need to be a modification of child custody orders.
In order to modify a child custody order, you will need to file a petition (sometimes referred to as a motion) with the appropriate court. Generally speaking, the petition must contain the following information:
- Both parents’ names and addresses;
- A copy of the existing custody or visitation order;
- The reason as to why you are seeking modification; and
- Your proposed modification terms.
The petition must be signed by you, and filed with the clerk of the court where your case is pending. There may be a fee associated with the filing, and some courts require certain forms to be attached to the petition. A copy of the petition must be served to the other parent or sent to their lawyer.
The court issues a hearing date on the petition, usually prior to reaching their decision. After hearing both parents’ arguments, the judge will consider the evidence in order to determine if the modification is in the best interests of your child. If an allegation of child abuse is the stated cause for modification, temporary orders which remove the child from the household may be put in place. This is intended to protect the child until the petition for modification is heard and resolved.
Do I Need a Custodial Rights Lawyer?
If you are involved in any sort of child custody arrangement or dispute, you should consult with an experienced and local child custody lawyer. State laws vary in terms of how the primary custodial parent is defined, as well as how to modify an existing child custody order. As such, an experienced and local child custody attorney will be best suited to helping you move forward according to your state’s specific laws.
An experienced attorney will be able to help guide you through the custody process, and ensure your parental rights are protected. Finally, an attorney will also be able to represent you in court, as needed.
