Custodial Parent Law & Legal Definition


A custodial parent is the parent who is given physical or legal custody of a child by court order. There are two kinds of custody: legal custody and physical custody.

Custody battles most often arise in a divorce or separation, requiring a court's determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18. When both parents share custody of a child after a divorce it is called joint custody. Joint custody may be either legal or physical custody. Physical custody, designates where the child will actually live, whereas legal custody gives the custodial person(s) the right to make decisions for the child's welfare. Child custody can be decided by a local court in a divorce or if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison or dangerous to the child's well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent or an orphanage or other organization or institution.

The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The custody order may be modifed if circumstances warrant.

Child support is a court-ordered payment by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the amount of support is based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, continues after the child reaches 18, such as duiring college attendance.

The award of child support may be modified by the court upon petition of either party if a change of circumstance of the parents or child is proven. Child support is separate from alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.

Child support and visitation are independent obligations. You can’t stop paying support if visitation is denied, and you can’t deny visitation for nonpayment of child support. A person who denies ordered visitation or fails to pay ordered child support can be held in contempt of court and states have various remedies, which vary by state, for pursuing claims against parents who owe back child support.

Stepparents generally don't have legal rights regarding support or custody of a child simply by remarriage. In some states, stepparents may have the right to sue a custodial parent for partial custody or visitation of the custodial parent's minor children. This generally occurs when the stepparent and custodial parent have resided together and assumed the joint role of supporting and caring for the custodial parent's minor children. If the custodial parent denies access to the stepchildren, a stepparent can file a complaint for partial custody or visitation. In limited circumstances, if the stepparent's spouse was the custodial parent and dies, the stepparent may be able to be awarded primary custody of the custodial parent's minor children even if there is a surviving biological parent or other blood relatives.