What are the Rights of a Custodial Parent?

What are the Rights of a Custodial Parent?

A “custodial parent” is the legal term that represents the parent the child lives with for most of the calendar year. Many people refer to a custodial parent as the “primary caretaker” or “primary residential parent,” granting them numerous rights. Alternatively, the parent that spends the least amount of time with the child is called the “non-custodial parent”, or “secondary residential parent”.

The Rights of a Custodial Parent

The rights of a custodial parent involve having legal and physical custody of the child for the majority of the time. Legal custody, “parental responsibilities”, or “decision making-responsibility” refers to the right to make decisions regarding the child’s medical care, schooling, and other important matters. While physical custody, or “parenting time”, refers to the responsibility for the child’s well-being and living arrangement. In most states, legal and physical custody can be shared between the parents or given to one parent. 

Each state establishes the required amount of time a child must spend with a parent to be considered a custodial parent for physical and legal custody. Generally, parents with over 183 overnights (more than half the year) are deemed custodial parents. As there are 365 days in a year, one parent will always have one more overnight than the other, usually earning the custodial parent status. Parents can always agree to be joint custodial parents in physical and legal custody and share the rights of a custodial parent. (See more below.)

Rights and Responsibilities of Custodial Parents

Custodial Parents have many rights and responsibilities such as financially supporting their child and making choices regarding their child’s healthcare, religion, and education. They are responsible for the day-to-day decisions related to the child. The custodial parent ensures that the child attends school, doctor appointments, and extracurricular activities. 

The custodial parent has a constitutional right protected by the Due Process Clause of the Fourteenth Amendment to determine, without any interference by the state, how to best raise, nurture and educate their child.

Also, the custodial parent has the right to claim the child on their taxes or choose to alternate the years they claim their child with the other parent.

Check out “Child Custody: 6 Things a Divorcing Mom Must Know”

In most states, custodial parents have a presumptive right to relocate with the child. They must get approval from the court and give the other parent proper notice, but a court could only restrain this move if the non-custodial parent proves that the relocation will cause harm to the child. 

Who Decides Child Custody?

Deciding who the child lives with is called determining “parenting time” or “child custody”. Parents could agree on a parenting time schedule or if the case goes to court, the court will decide child custody based on many factors, if the parents can’t agree on a schedule. Usually, the courts craft a visitation schedule to maximize both parents’ involvement in their children’s lives under the given circumstances. Most states apply the best interest of the child standard, making the child’s well-being the focus. 

Read “Best Advice on Custody for Divorcing Moms”

While this is no list of every single factor a court may consider when analyzing the best interest of the child, each state has main considerations for the courts to use. The courts usually consider the child’s needs, safety, the child’s adjustment to home, school, and surrounding community. In many states, the courts will consider the custodial history of the child and the relationship between the parents and the child. Almost all states allow judges to consider the wishes of the children but don’t make it a priority to follow these wishes, only take them into account. 

Who is the Custodial Parent in a Joint Custody Arrangement?

When both parents spend a substantial amount with their child, this is referred to as joint custody. A joint custody arrangement can look like the child living with one parent for seven days and then the other parent for seven days. In a joint custody arrangement, both parents become custodial parents, often referred to as “joint custodial parents,” and share the rights of a custodial parent. This grants both parents sole physical and legal custody.

In certain states like Kentucky and Texas, the court may grant both parents the custodial parent status but assign the child to reside primarily with one parent. In this situation, the parent who lives with the child does not possess superior authority in determining how to raise the child or making major decisions. Both parents would still need to make these decisions together.

Additionally, in some states, the courts can order a joint custody arrangement, but appoint one parent as the custodial parent, or “sole legal custody”, or “sole decision-making authority”. So, while the child is spending equal time with both parents, the custodial parent can make the final decision on major issues about the child that they and the non-custodial parent cannot agree on. The parents can even split the final decision-making authority based on the issue. For example, one parent has the right to decide the child’s health and extracurricular activities, and the other parent has the right to decide the child’s education and religious upbringing.

Who Pays Child Support?

Custodial parents have the right to receive child support depending on each party’s income. Each state has its own formulas to calculate child support. Generally, there are three ways states calculate child support: (1) the Income Share Model, (2) the Percentage of Income Model, and (3) the Melson Formula. The Income Share Model considers both parents’ incomes to proportionality divide the costs of raising the child, while the Percentage of Income Model only considers the non-custodial parent’s income. The Melson Formula considers both a parent’s basic needs and income, as well as the child’s basic needs. 

Read “Child Support: 5 Things Mothers Must Know

Thirty-nine states, including California, Georgia, and Washington, use the Income Share Model. Eight states use the Percentage of Income Model: Alaska, Arkansas, Massachusetts, Mississippi, Nevada, North Dakota, Texas, and Wisconsin. While, only three states use the Melson Formula: Delaware, Hawaii, and Montana. 

For more on dealing with co parenting issues, check out our many co parenting articles here.

Child Support in Joint Custody Arrangements

In a joint custody arrangement, child support can still be provided based on the parent’s income and how much overnight time they have with the child. For example, in Illinois, a parent must have at least 183 overnights with their child to receive child support. This is a typical amount of overnight visits in a 50/50 joint arrangement. The amount of child support rises with an increase in overnight visits. Overnight time is a big part of a joint custody arrangement when determining child custody. 

It is important to note that some states, like Illinois and California, can order a custodial parent to pay the non-custodial parent child support. If both parents’ incomes are around the same amount or the custodial parent makes more, and custody is split 50/50, the custodial parent could be ordered to pay some child support.


Going through a divorce is hard and stressful enough. But now, you have to discuss the children. It could get even more stressful, but it doesn’t have to be now that you are well-informed of the rights custodial parents have. While the term custodial parent may sound scary, it is simple and only reflects that you have physical and legal custody of your child. You can now make the best-informed decision for your family. 


Taelor Thornton is a rising third-year law student in Chicago committed to representing the most vulnerable people in society such as older adults, women, and children. She aims to work in a family-related firm after graduation and potentially starting a law firm one day. Please make sure you are taking care of yourself and staying safe.


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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

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