Definition of Non-Custodial Parent
A non-custodial parent is one who does not have primary residential or legal custody of the child or children. Custodial parents are those parents with whom the children will primarily reside. In many instances, parents will share legal and physical (residential) custody of the child.
A parent may not have legal custody of a child for any number of reasons . Most commonly, a parent may no longer wish to live together and wishes to separate and be free from the obligation of caring for the child on a daily basis. In such circumstances, custody disputes will often arise, reaching the courts if the parties are unable to reach an amicable agreement. For whatever reason, a non-custodial parent may not see a child on a regular basis, thus entailing a different relationship than that held by the custodial parent.
Parental Rights in the Absence of Legal Custody
Parental rights can be established in a number of ways. Sometimes the parties agree what parental rights an individual will have. In other instances, the court has approved or determined what rights an individual will have. In North Carolina and South Carolina many non-custodial parents have the right to visitation with their child and to participate in important life decisions. I will try to explain how those rights come about even if a parent does not have legal custody of their child.
In terms of "visitation", North Carolina is a little different than South Carolina. The basic idea is that if a non-custodial parent does not lose court ordered visitation, however limited, that parent has the right to visitation. In North Carolina, there is a presumption in favor of parent/child visitation. In South Carolina, you have to request it. In North Carolina, a judge looking at what is best for the child must presume that a parent, even one who has lost custody, should have some parenting time with that child. The burden is on the parent wanting to deny visitation to show that visitation will substantially interfere with the welfare of the child. This is often referred to as the "Super Dad" rule. That means that in a record setting amount of evidence would have to be presented to prove that visitation would substantially interfere with the welfare of the child. That could only occur in very serious mental health conditions, substance abuse issues, or unhealthy family dynamics. In South Carolina, a non-custodial parent must request visitation from the court. If the request is made, the court must order visitation if visitation is in the best interest of the child. In both states, courts will look at what is in the best interest of the child now and in the future (that is more than just if the parent uses tobacco or has moved away, for example).
The involvement of a parent with important life decisions is not as clear cut. In that situation, you want a court order specifying that the parent is entitled to participate in those decisions and when. In North Carolina, if the parent and child has resided apart for a continuous period of at least one year, the parent may be granted the right to make healthcare decisions for the child in an emergency. Otherwise, it must be court ordered. In South Carolina, it is in the Child’s best interest if both parents participate in major life decision, but those decisions will only occur if agreed upon by both parents. In my experience, that is usually motived by other issues. For example, I have often seen a parent who is not entitled to visitation, try to get some control over the other parent by taking over healthcare decisions. When right of first refusal (the right to take care of the child if the custodial parent is out of town and/or the right to be the first offered childcare provider if the custodial parent wants to go out of town without the child for three or more days) is a high conflict point, it makes more sense to let the parents determine where the child goes when the decision is triggered.
Judicial Papers and Custody Agreements
To protect your rights, you should have formal legal documentation concerning your child’s welfare if you are not the custodial or primary parent. This may be in the form of a written separation agreement or an order of court delineating terms and conditions.
The Family Law Act provides that a legally binding written agreement signed by both parents can be registered and support payments monitored. More importantly, the terms of such an agreement are enforceable as if it were a court order. It is therefore important to have an agreement signed by both parents that is clear and specific.
Many years ago, courts were very reluctant to grant custody of children to the father, preferring instead to leave children with their mothers. Nowadays, the trend in the courts is towards shared parenting which means a breakdown of the traditional view that the mother is the caregiver for young children and the father the breadwinner. Courts will look at the relationship between the children and the parents and if it is a strong one, they may well grant joint custody. However, joint or shared custody does NOT mean that the children have to go back and forth on an alternate basis every week. One parent and one home is generally considered to be the most desirable situation for children. This is in sharp contrast to the way it used to be that children would be taken from the home and given to the opposite parent with some visitation to the other parent according to the ages and the circumstances of the children.
Customarily, a custody agreement recites the times and places for visits. Even more important are the portions in the agreement allocating specific responsibilities for all aspects of the children’s lives.
Rights and Limitations relative to Visitation
The visitation rights of a parent who does not have legal custody of their child can be limited or expanded by the parent who does have legal custody. For instance, if the parents of a child decide to separate but are not yet divorced, one parent may have a larger number of visitation days (and rights) while the other parent has a smaller number of days. Children may be too young to be moved about as often as an older child or to travel long distances, for that reason, some visitation rights are limited to the daytime and to areas surrounding the home of the custodial parent/guardian. While the degree and extent of visitation rights belong to the custodial parent, the custodial parent cannot infringe on the non-custodial parent’s rights without first coming to a new agreement. If the parents cannot come to a new agreement, then the non-custodial parent can take the issue to the courts.
Generally speaking, the courts are only interested in visitation when the custodial parent decides that a visitation request is unreasonable, i.e. the non-custodial parent has not followed the visitation agreement and/or is acting in a way that is harmful to the child. If, for example, the visitations are in areas that are not conducive to children, the courts may make a temporary modification until the custodial parent can deem the locations safe. If the non-custodial parent is using the visitation period against the other parent, for example, by threatening them with physical harm or harassing them, the courts will likely make a temporary modification of visitation rights until custody is finalized.
How to Affect Major Life Decisions
Under Colorado law, a parent without legal custody may exercise some influence when it comes to major decisions in their child’s life. However, this right is limited and cannot violate the right of the other parent.
Major decision points in children’s lives can include:
A parent with sole legal custody often makes these decisions alone but, under Colorado Revised Statute 14-10-123, a non-legal custodial parent has the right to be consulted about such major life decisions . The statute requires that a non-legal custodial parent must be notified of major life decisions, and that the parent be given reasonable opportunity to be involved in the decision-making process. However, the legal custodian is not required to actually involve the non-legal custodian, so the decision ultimately is up to the legal custodian alone.
If the custodial parent chooses to exclude the non-legal custodian from the decision-making process, the non-legal custodian may go to court for modification of certain parenting time rights or for contempt of court. However, the courts will generally not take action unless the legal custodian is clearly wrong.
Modification of Custody and Visitation Rights
Even if a parent does not have custody of a child, that parent has the right to file a motion to change the visitation schedule. Not all non-custodial parents have liberal or satisfying visitation rights with their children and many want to modify the time they spend with their children. The process for filing a petition to modify visitation is very similar to the process for filing a petition to modify custody. In preparing a petition to modify visitation, a parent must have a legal reason to request the change. Sometimes these legal reasons include significant changes in work schedules that will limit a visitation parent’s availability; extensive travel that means the parent will be away and unable to visit the child/ren; or the well-being of a child that means a change from the current schedule is in their best interest. When a custodial parent files a petition to modify custody, the non-custodial parent may also counter with a petition to modify visitation. An experienced Missouri family law attorney will walk you through petitioning to modify both custody and visitation.
Legal Help and Resources
For non-custodial parents who wish to explore or enhance their parental rights, various legal resources are available to guide them through the process. Local Bar Associations: Many local bar associations provide free or low-fee legal clinics for individuals who seek support in understanding the complexities of family law. Participation in a clinic provides the non-custodial parent with immediate access to a qualified family law attorney who helps them understand fundamental rights and navigate the challenges they face in seeking to establish or negotiate their parental rights, as well as resolve their individual and family law issues . Government Legal Aid: Low-income parents in need of family law assistance may be able to apply for government-funded legal aid. Many local legal aid offices have attorneys with family law specialization that help county residents understand the laws and legal options unique to their individual situation. Divorce Coaches: When parents decide to hire a divorce coach, they may rest assured that their coach will work to benefit the entire family unit. A divorce coach helps parents communicate with each other in a way that minimizes conflict and maximizes the benefit to their children. It is in your & your child’s best interest to work with a divorce coach.