All You Need To Know About Custodial Parent

What is a custodial parent?

Is there anyone that you know whose parents are divorced? The answer to this question is 100% a yes. About 1 in every 2 to 3 marriages are ending up in divorce nowadays due to various reasons. Though divorce is hard on both the husband and the wife, if there are any child/ children involved in the marriage then they too must face the hardships of getting separated from one of their parents in this procedure and along with that they sometimes might need to shuffle their lives according to the new environment.


Custodial Parent:

By definition, the parent with whom the minor child stays after the divorce of their parents is known as the custodial parent and also as the primary parent. This parent can have the sole physical custody of the child which means this parent will keep and care for the child at all times or have primary physical custody of the child, where the parent will care and keep the child with them most of the time. Just because the parent has physical custody of the child doesn’t mean he/she has legal custody.

In most cases, the mother gets the right as the custodial parent and the father gets the right as the non-custodial parent, but this can change depending on the situation of the mother’s mental health, living conditions, and the mother’s ability to bear the expenses of the child though the co-parent sometimes shares the financial rights too.

little boy sad

  • There are certain legal tips and rules that a custodial parent should keep in mind such as-


  1.       Sticking to a visitation plan with the non-custodial parent/co-parent.
  2.       Tracking the child support payments made by a co-parent.
  3.       Consulting the co-parent on important matters
  4.       Doing things that are in the best interest of the child.
  5.       Informing the co-parent before leaving the state with the child
  6.       Consulting the co-parent before incurring major expenses.


A legal guardian and custodial parent are not the same things as a legal guardian is someone other than a biological parent who has the right to take care of the minor child in absence of his or her parents.

How is a custodial/primary parent determined? 

A primary parent is determined depending on where the child spends most of the time and before determining this, the court makes determinations on the physical and legal custody of the child.  Legal custody refers to the ability of the parent to make important decisions and day-to-day care and upbringing of the child which includes the child’s religious upbringing, schooling, extracurricular activities, medical treatment, etc. Sometimes parents share legal custody even though only one parent has physical custody of the child.


Non-custodial parents/co-parent and their rights and responsibilities :

A non-custodial parent is a parent who wasn’t allowed to have full custody of the child after the divorce and with whom the child doesn’t live for the majority of the time. In many cases, the co-parent has legal custody of the child where he/she can make decisions regarding the child’s life and may even be financially responsible to take care of the child.

The child might even go to stay with this parent over the weekends but with the permission of the primary parent. In some extreme cases of a bad divorce, the co-parents have only limited access to meet their child or scheduled visiting hours and rights but under the supervision of the sole parent.


Joint custody: 

Sometimes parents might split the physical custody of the child among themselves and be equally involved in the child’s life in joint custody. Under this arrangement, both parents would be considered as the custodial parent of the child and can take turns in keeping the child with them under mutual communication. Joint custody doesn’t mean that the child needs to spend equal amounts of time with both parents, but that the child stays with both parents throughout the year.

All You Need To Know About Custodial Parent


New York state child support laws for a non-custodial parent :

The court has to make a lot of financial calculations before determining the amount of child support a co-parent has to pay. The amount of child support is ordered based on several factors such as the number of children if the child has any special needs and the parent’s income.


In New York, child support has a basic and added component (imputed income). Under the basic component, the child support is calculated according to an examination of the initial capped income amount on combined parent income which is £154000 as of March 2020. Usually,  for one child the non-custodial parent has to pay a level of basic support of their pro-rata share of 17% of the capped amount, 25% for 2 children, 29% for three children, 31% for 4 children, and no less than 35% for 5 or more children.


Though the income level of parents depends on the raises, moving, layoffs, and quitting jobs, sometimes parents also report having a lower income so that they can avoid paying the child support.


Due to this, the court uses imputed income as a way to overcome this challenge. The court assigns an amount of income to the parent who has shown to have no income or very less income. The court decides what the parent could have earned if he or she worked up to his or her capabilities and this is known as imputing an income of a minimum wage to the parent. So a co-parent still needs to pay child support even if he or she is unemployed.



What happens if the non-custodial parent misses visitation? 

Time with parents is very important for the upbringing and mental health of the child after his or her parent goes through separation. When a non-custodial parent misses visitation or doesn’t pick up the child for their visitation ordered by the court, it can impact the child negatively as waiting for the parent may make the child sad, scared, angry, and sometimes make them wonder why their parents didn’t show up. The child might feel that his or her father or mother doesn’t want them in their life, and this can damage the child’s self-esteem and mental health.

If the non-custodial parent wants to make up for the missed parenting time, then he or she needs to contact the court, and depending on the reason why the parenting time was missed, the request may be denied or accepted.

If the co-parent keeps missing the visitation, then drastic measures might be taken against him or her by the court as the child’s best interest is always given priority in these cases. If the situation hampers the child’s mental health and day-to-day life, the parent may be fined or even have to go through counseling or termination of rights as a co-parent.

leaving boys car
Nightmare trip with three kids. Kids getting bored from long trip and nauseous from car sickness.
Nikon D850

When or at what age can a child refuse visitation with a non-custodial parent?  

The law allows the child to have an opinion about whom they want to stay with at the age of 12, but when a child turns 16-17, it becomes hard to enforce the visitation as at this age the child can become very disruptive and might even run away from the home if too much pressure is created on them.

After becoming a legal adult at the age of 18 years old, he/she might make the decision and refuse the visiting rights of the non-custodial parent. While they might live with the custodial parent until he or she graduates high school, the co-parent might still have to pay the child support till graduation. But this doesn’t give them the legal right to visit the child.

  • The child can have many reasons to not meet the non-custodial parent, such as-
  1.       The child might not get along with the new partner of the co-parent.
  2.       The child and the co-parent might disagree on many topics that lead to fights and strains their relationship.
  3.       House of the co-parent might be far from the school, friends, and other enjoyable things of the child
  4.       The child might not be happy and okay with the rules he or she needs to follow in the house of the co-parent.


How to get a child back from a non-custodial parent?

There have been many cases where the non-custodial parent refused to give the child back after taking them to the house for the visit. In such situations, the first thing a custodial parent should do is communicate with his/her ex in a calm and collected manner over a meeting, a call, or an email.

If this doesn’t work, then the parent can take appropriate legal actions by getting a lawyer and going to the court with all the documents and evidence that would clearly state the situation where it will show that demand was made to the non-custodial parent for the return of the child.

After assessing the situation, the court may give the order signed by the judge to return the child and if the ex refuses the order, then legal actions can be taken against them. In such conditions, it is advisable to get a restraining order against the non-custodial parent for the protection of both the custodial parent and child.


How to terminate parental rights of non-custodial parents?

Parental rights are taken very seriously by the state and the court, so, certain situations and steps need to be taken to terminate a non-custodial parental right. A non-custodial parent himself or herself can’t request or agree that his or her parental rights be terminated.

  • Only certain people can request to terminate the rights of the non-custodial parent and they are:


  1.       The custodial parent.
  2.       A presumptive adoptive parent.
  3.       Social service agencies.
  4.       A person with whom the child has lived for 2 or more years.


  • There have to be legal grounds for terminating the parental rights, such as-


  1.       The child has been neglected, abandoned, or abused by the non-custodial parent
  2.       The non-custodial parent hasn’t paid the child support for more than a year without any explanation.
  3.       The non-custodial parent can’t provide proper care for the child.
  4.       The child was born out of wedlock and the father didn’t take any actions to legitimize the child
  5.       Other reasons.


The custodial parent should meet up with an attorney lawyer and review if she or he has enough evidence to show the court to seek termination. The court will not simply take the parent’s word for allegations, there have to be eyewitnesses, medical records, or police reports of cases of abuse, abandonment, or neglect.

Even if there is enough evidence for termination, the court might not go through termination unless it is in the best interest of the child.

When parental rights are terminated, the non-custodial parent won’t have any right of visitation or have any say in the upbringing of the child. Along with this, the parent will no longer have to pay child support.

Sometimes, a termination plan is also brought up so that the child can be adopted by the stepparent.

All You Need To Know About Custodial Parent

What if the custodial parent moves out of state?

Custody arrangements are made by the court in such a way so that both parents live and can spend sufficient time with the child. A custodial parent can’t suddenly decide to move out of state or country with the child without prior permission from the court.

If the parent moves the child without the knowledge and permission of the court and the non-custodial parent, then the court can take action against the parent and can punish the parent with a contempt order which might include fines and jail time, along with this, the judge can even take away the custody rights from the parent and give it to the non-custodial parent.

In some cases, parents can mutually agree for the move of the child with the primary parent out of the state or country and can agree on a new custody arrangement where the non-custodial parent will get sufficient time to visit and stay with the child. But if the parents can’t agree to this, then they might hire a co-parenting counselor who will guide and help them to come to a decision which is best for the child.

  • The court might allow the out of the state move only under the circumstances such as-


  1.       New marriage of the parent
  2.       Better job opportunity with higher income
  3.       Better educational opportunity
  4.       Closer living places with the extended family of the custodial parent who will help with the childcare and support


What happens when a custodial parent goes to jail?

If a custodial parent goes to jail, then the judge of the court has the right to determine what will happen next to the child regarding the custody. The charges and conviction against the sole and primary parent will be seen and then depending on the type of charges for example- murder, assault, or security assault, etc. the judge can take away the parental rights from the parent.

As the incarcerated parent can’t have custody of the child, the judge may give temporary custody to the non-custodial parent or any other person of the family who is capable of taking care of the child in absence of the parent who is behind the bars.

However, even in this situation the parents can share the responsibilities and have the right to make decisions regarding the child’s life if the judge doesn’t terminate the parent’s custodial rights.

All You Need To Know About Custodial Parent

Change of custody 

Child custody isn’t always something this is set in stone. The court can change the order of custody at any point in the child’s life until he or she turns 18. All it takes is just one parent to file for a request to change custody and usually, this is requested with the help of the family law attorney.

  • The court may change the child’s custody under 2 circumstances:

– There has been a change in the situation that is affecting the child’s welfare.

– Changing the child’s custody will be in the best interest of the child.


  • There are certain reasons why a judge will change a child’s custody:
  1. Custodial parent wants to move out of state or move to a place that will create conflict with the visitation of the co-parent.
  2.  One parent refused to follow the conditions of the custody.
  3. The needs of the child had changed and required a different environment for the care and upbringing.
  4. A parent’s situation has changed, for example- the parent has lost the job or is not well suited to care for the child anymore or the co-parent who has a drug abuse problem, now has been clean for 2 years and is capable of caring for the child.
  5. The child is in danger with a custodial parent.



It isn’t always necessary to involve the court in choosing the custodial parent for the child. Both parents can mutually agree for the betterment of their child/children to share the rights and custody of the child. Sharing custody might be difficult for the parents even in the smoothest divorce. Parents should remember and give attention to their child’s needs in these situations the most as this transition in life is as tough on them as it is on the couple. Keeping a positive attitude and a normal environment is very important for the children to get used to the new situation.



Please enter your comment!
Please enter your name here