Determining What a Custodial Parent Is
Understanding the Legal Definition of a Custodial Parent
Although often thought to mean "the parent who gets the most time with the children" the legal definition of a custodial parent does not actually refer the time-sharing schedule at all. Rather, it is a legal term of art, that concedes to one parent the right and responsibility to make decisions concerning the child in key areas of importance in the child’s life. For example, the parent with majority time-sharing is almost always the one to whom the child primarily looks for guidance in religious matters, educational matters , and healthcare matters. This parent also tends to remain the primary point of contact for school personnel and healthcare providers.
Information on the parent’s ability to make these key decisions for the child is required for the Petition for Temporary Order, Final Judgment, and Parenting Plan. Indeed, The Florida Statutes require that the Parenting Plan include "a designation of who will be responsible for health care decisions." Fla. Stat. §61.20(1)(b). The law specifically provides that when two parents are acting together to make all decisions jointly they are governed by the same authority as a custodial parent. For the sake of brevity, the role of the non-custodial parent will be addressed in another blog post.
Rights and Responsibilities of a Custodial Parent
The rights and responsibilities of a custodial parent include both decision-making authority for the children as well as day-to-day care. In the first instance, the custodial parent has the right to make all the decisions for the child’s welfare, including medical decisions. The custodial parent has the final say about the child’s education (i.e., public, private, charter or home schooling). The custodial parent decides where the child will go to school, except in cases where the parents share educational decisions. In that instance, the parents must be involved in the child’s education, and they each have the right to access the child’s educational records. When the parties cannot agree, they can return to court and seek the judge’s opinion on the matter. Whatever the decision is, it will be in a written order signed by the judge. That order is binding on the parties. The custodial parent must allow the non-custodial parent to have access to educational records.
A custodial parent has the right to decide where the child will live. While the custodial parent has the right to make that decision, if a move would require a move outside the state, statute now requires notice and provides a basis for objection. Without agreement, the court can conduct a hearing and approve or deny the move, based on the best interest of the child. Additionally, the custodial parent has the right to consent to medical treatment, with the exception of elective surgeries that require general anesthesia. Those types of surgeries require the consent of the non-custodial parent, unless the court furnishes another basis for consent.
In many instances, the custodial parent has the right to decide whether to consent to a marriage for someone under age 18. A minor under age 18 cannot get a driver’s license without parental consent. While the law now provides for a minor to receive birth control without parental consent, there are some exceptions. The custodial parent has the right to consent to the medications and procedures that do not fall outside of the exclusions listed above. When those situations arise, however, the custodial parent is obligated to try and obtain the non-custodial parent’s consent.
While the law provides for legal decisions to be made by the custodial parent, day-to-day care includes having the child at all times and making day-to-day decisions. Therefore, the custodial parent determines how the child will spend his or her time during the week, what will be included in the school lunch, what the child will wear that day and so on and so forth. Unlike the legal decision-making authority, the day-to-day decisions lack formality. While forms of communications could include the use of parenting coordination, most individuals communicate using e-mail, text messaging or other forms of technology.
Where and How the Court Decides on Custody
The legal process for determining custody typically involves an initial hearing where the court establishes temporary custody orders. These orders are often in effect until a full custody evaluation can be completed. Depending on the state’s procedure, a family law mediator may also be called in to help parents reach an agreement regarding custody and visitation.
At the final hearing, the court will often rely on recommendations given by the evaluator about which parent should receive custodial status. Evaluations are based on interviews with parents, in addition to interviews with teachers, caregivers, and other professionals the child may have contact with. Parents may also be asked to submit records regarding their child’s well-being, such as medical, educational, and psychological records.
In its determination for final custody, the court will take into consideration a number of factors: the fitness of each parent to be a caregiver, the ability of each parent to care for the child, the presence of domestic violence or abuse, the financial condition of each parent, and whether other custodial candidates may be more appropriate for the child.
Although courts are able to appoint a guardian ad litem for children for the expressly purpose of custody determinations, most do not do so automatically. There are a number of circumstances where guardians ad litem may not be assigned or abandoned by the court:
If appointed, a guardian ad litem participates in the interview process with parents and other caregivers and becomes involved in the litigation process. This agent may even testify in order to help the court make its decision.
Influence of Custodial Parent Status on Child Support
The custodial parent, or the parent who has primary physical custody of their children, plays an integral role in the child support section of any divorce settlement. Two types of child support are often calculated in the divorce; one being the amount of alimony paid to the less-monied spouse, and the other being the amount of child support derived from some formula that incorporates monetary and non-monetary expenses shared between the parents.
The Department of Revenue Services publishes the child support guidelines for Connecticut. The formula based on a percentage of gross income applies to obligees (i.e., the non-custodial parent who pays the support) who have at least 55 overnights with the child or children. Over this threshold, the formula is replaced by the percentage of income formula described above. The child support guidelines include monetary support and health insurance if provided to the child or children. Monetary support covers such costs as educational and tuition expenses, extracurricular activities, unreimbursed medical and dental expenses and child care, including after-school and summer camp. The guidelines [numbered 26-4(d),] also speak of "other expenses" which are defined as "[A]ny other expenses incurred by either party for the benefit of the minor child; (1) incurred by both parties and for which the parties share a responsibility in accordance with their ability to pay; (2) not expressly covered by the child support guidelines; (3) not otherwise included in the calculation of support; and (4) that are mutually agreed upon by the parties."
These "other expenses" are not always easily agreed. Therefore, the burden is on the spouse requesting additional funds for "other expenses" to establish a need for the funds. In most cases, the courts are not eager to create additional mandatory payments for the obligor under this rubric, but when non-monetary contributions for a child can be provided outside a child support agreement, and when those non-monetary contributions can be shown as necessary to the well-being of the child and are in line with the lifestyle to which the child is accustomed, the courts will consider those.
It is clear that the role of the custodial parent is a vital one, but it also means that the custodial parent needs to be prepared to take on more responsibility after the divorce than they may have before.
How to Change Custodial Parent Status
The change of custodial parent status is a possibility that makes sense for some families. Something happened, or life circumstances exist, that put other options on the table. Typically, a motion with a request for relief to the Judgement of Divorce is filed with the Family Part of Superior Court in the county in which the custodial parent resides. The motion is drafted and filed, the other person in the case is served, discovery is exchanged, and the matter is tried. It can be a complicated process, or it can be relatively straightforward, depending upon the situation. Not much time passes from the filing of the motion until a court date is set. At least in our cases, and those of many practitioners, the parenting time schedule that was in effect at the time of the filing remains in place until the issue is decided. In other words, parent two continues parenting time as scheduled, so that there is no disruption to the child’s life. The judge / referee hears testimony from both parties to determine whether changing custodial parent status is in the best interests of the child. This is sometimes called a plenary hearing, or trial. Unlike divorces, most cases of this type are resolved / decided after a single day of testimony and argument – meaning, proceedings generally don’t extend for days upon days . It may, however, be necessary to obtain a psychological evaluation of the child, or to have an attorney for the child appointed by the court. These case specific considerations depend on the circumstances of each situation. At the conclusion of the trial, the judge / referee often times makes a determination from the bench. That is, the decision about who will be considered custodial parent is decided at the same time that live witness testimony is heard. If necessary, a judge’s decision is made at the end of the trial, but the referral to a matrimonial master allows a family law judge to issue an emergent order. As with a full trial and/or a custody evaluation, a judge’s emergent decision determining what parenting arrangement is appropriate can conclude the case, or can set interim arrangements that remain in place until the matter proceeds to trial again. The important point to take away here is that a motion to change custodial parent status is possible and can be done. Many families consider modifying the original custody arrangement after making it for a year or two. Life circumstances change and this could be the reason for requesting a change.
Visitation and the Custodial Parent
Custodial Parent, Visitation Rights and Non-Custodial Parent
The visitation rights of the non-custodial parent are influenced by ruling on custody of the child. If the custodial parent has physical control over the child, he or she is typically granted residential or physical custody of the child, while the other parent has legal custody over the child. Legal custody gives the non-custodial parent the right to make decisions for the child. Some courts consider if both parents contribute financially to the child, or whether or not one of the parents has been neglectful or abusive.
Physical custody makes the parent who has it the primary caretaker of the child, whereas legal custody gives a parent the authority over the child’s well-being. In some cases, parents of the child may share joint legal custody but put the child within the custodial care of one parent, thus permitting the other parent visitation rights. In general, the courts favor keeping the child physically with one parent with the possibility of visitation rights with the other parent.
Courts consider the needs of the child when determining the structure of custody and visitation rights. Outside influences, such as the relationship between the parents and the relationship between the child and each parent, are taken into account. If a parent with whom the child is not living has repeatedly neglected or abused the child then visitation rights may be restricted to on-site visits with limited supervision, or visitation rights may be denied altogether. If a parent cannot financially support the child after separating, then that parent is granted visitation rights through a system set up and protected by the courts.
Non-custodial parents can legally enforce their visitation rights in the event an ex-spouse attempts to deny those rights. If a non-custodial parent and child have a close relationship, the visitation rights may be used to maintain that bond and have it reflected and recognized in the law. In some cases, the non-custodial parent can sue for the right to visit with the child and remedy the situation by way of injunction against the custodial parent for denying those rights.
Help for Custodial Parents
Custodial parents are bombarded with information about their rights and responsibilities just about every day. They are often looking for sources they can trust to make sure they are doing what’s best, legally and emotionally, for the kids and themselves. The resources below have been created by knowledgeable professionals, like family lawyers, social workers, teachers and psychologists, who have understanding and insight into this area.
National Parents Organization (NPO) – This organization focuses on parental rights and responsibilities that promote the welfare of children.
Healthychildren.org – Created by the American Academy of Pediatrics , this website contains a variety of articles on children’s health issues and parenting practices.
American Academy of Child and Adolescent Psychiatry (AACAP) – The AACAP provides information on parenting and children’s mental and emotional health.
The National Child Traumatic Stress Network – This organization provides a comprehensive look at how trauma can affect children of all ages, and how parents can identify it and help their kids through it.
For specific examples of what role the custodial parent should play and when, consult these websites:
Cases Blog by Jonathan M. Friedman – The 30/30 long day parenting plan was created by attorneys and judges to work in the best interest of children.
DivorceNet.com – This website provides a practical guide for divorced parents to follow when issues of parenting time arise.