What are the Rights of the NonCustodial Parent?
Divorce is rarely easy – but going through a divorce when you are a mother makes the journey even harsher. Research tells us the top two fears for most women are how their kids will be impacted and how the finances will change. In this article, we will tackle the first concern: your children. Specifically, we will discuss the emotionally challenging concept of custody and the rights of the noncustodial parent.
During a divorce, a court may have to decide where and with whom the children will live. This can happen if you and your spouse cannot agree on the parenting plan or schedule, or if one of you cannot care for the children.
To help you understand and take control, we will explain what a noncustodial parent is, outline their rights, and describe your options if you feel the court has unfairly named you as the noncustodial parent.
Who is a noncustodial parent?
There are two types of custody, physical custody and legal custody. Physical custody is when the child gets to reside with the parent, and legal custody is when the parent can make critical decisions about the welfare of the child.
A noncustodial parent does not have physical custody over their child. However, this does not necessarily mean that the noncustodial parent cannot have legal guardianship over the child.
How can a noncustodial parent situation occur?
When a court decides as to the child’s living arrangement, the standard the court uses is what is in the best interest of the child. There are several factors courts will use in this consideration:
- The child’s relationship with each parent
- The child’s ability to get accustomed to a new environment
- The physical and mental health of the parent and the child
- The financial abilities of each parent
- And the child’s wants and needs
Most child custody cases will result in the parents having shared custody of the child, meaning the child will spend equal time at both parent’s houses.
When a court deems that a child may not be safe to live with one of the parents, or the child won’t have a standard of living adequate with one parent, that parent becomes the noncustodial parent.
Consider reading “Best Advice on Custody for Divorcing Moms”
What are the rights of a noncustodial parent?
As mentioned before, not having physical custody over the child does not mean you will not have legal custody. As a parent, you have the right to voice your opinion for the child’s well-being and upbringing.
You have the right to partake in decisions about additional tutoring, the child’s religious beliefs, and their healthcare services.
The other predominant right a noncustodial parent has is visitation rights.
As a non-custodial parent, you have the right to see your child, talk to your child over the phone, and video-call your child. The court may set a frequency for your visitation. For example, two times a month, every weekend, or as frequently as you would like.
What if you think you are unfairly named the noncustodial parent?
Being a noncustodial parent may not be ideal in your situation. If you believe the court has unfairly named you the noncustodial parent, consult an attorney to explore your options and rights.
Courts will generally allow you to file a motion to modify custody when there is a showing of a substantial change in circumstances. To be able to file this motion, you will be required to provide evidence of why you believe you have been unfairly named the noncustodial parent and evidence supporting why this change in custody order would be in the best interest of the child.
Read “How Can a Court Custody Order be Changed?”
You also have the option to request a court-appointed expert to evaluate your custody order. This could be a social worker or a psychologist. This expert will usually assess the ability of both parents to care for the child.
Most importantly, continue to stay involved in your child’s life to the best of your ability. Any change in circumstances has to be accompanied by your persistent efforts to show you are committed to the well-being and upbringing of your child.
Consider “Advice on Child Custody: 9 Tips for Working with an Attorney for Children (AFC)”
Conclusion
If both parents are fit, your child deserves time with each parent including the noncustodial parent. In addition, every parent has a responsibility to care for their child. If you feel that you have been unfairly named the noncustodial parent, or that you would like to understand more regarding your rights as a noncustodial parent, it’s important to consult with an attorney. You will want to learn the best legal strategy for rectifying the arrangement.
At the end of the day, the well-being of your child is paramount. Yes, divorce is hard, and fighting for child custody can be a never-ending battle. But the biggest priority should be what is in the best interest of your child.
NOTES
Natasha just graduated from law school and has completed her Bar exam. With a longstanding interest in health law, she aspires to work for hospitals and nonprofits in continuing to advocate for women’s rights. Her goal is to address the historical issues that continue to prevail in our society by addressing the social determinants of health.
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*SAS continues to support same-sex and nonbinary marriage. In this article, however, we refer to your spouse as husband/he/him.
