What Legal Rights Does A Non-Custodial Parent Have?


In a divorce or child custody proceeding, the Court determines what legal rights a non-custodial parent will have. Although deciding child custody can be extremely difficult for parents, Illinois law has specific guidelines that the Court must consider when making these determinations. Ultimately, the Court’s decisions will dictate what rights and responsibilities each parent will have regarding their children.

What Does It Mean to be a Non-Custodial Parent?

Parents have two types of custody when it comes to their children: Physical and Legal.

  • Physical Custody: The child can physically live with that parent.
  • Legal Custody: The parent has a say in the child’s life, including making decisions about education, healthcare, and religious upbringing.

In most situations, when someone refers to a parent’s having “custody,” they mean physical custody. Legal custody stops for a parent only when their legal rights are terminated, either voluntarily or through a court proceeding. You do not lose legal custody just because your child does not live with you.

Who Is the Non-Custodial Parent?

A non-custodial parent is a parent that does not have primary physical custody of their child. Just because a parent does not have physical custody does not mean they do not have legal custody. That parent will often have visitation rights, but the Court limits those rights.

The other parent is referred to as the custodial parent. The child lives with the custodial parent, but they can often take overnight or short trips with the other parent.

How Does the Court Determine Who Should Be the Custodial Parent?

In most cases, the Court starts with the assumption that it is in the best interests of the child to have both parents involved in the child’s life. As a result, most divorce proceedings or child custody cases will result in shared physical custody. That means that the child will spend some time living in each parent’s home.

The Court is always focused on the best interests of the child when making custody decisions. If there is some reason that it would not be safe to live with one parent, then the Court will consider that concern when making custody decisions. Other factors that the Court might consider include:

  • Child’s relationship with each parent
  • The mental and physical health of each parent and the child
  • The ability of each parent to care for the child (physically, mentally, emotionally, and financially)
  • The child’s wishes regarding where they want to live (depending on how old the child is).

For instance, imagine that one parent previously abused the child or their former spouse. Under those circumstances, it is much more likely that the victim spouse, rather than the abuser, will be given sole physical custody of the child.

What Legal Rights Does a Non-Custodial Parent Have?

If the parents do not share custody, the parent that is not permitted to have the child live in their home is the non-custodial parent.

However, just because a parent does not have physical custody of their child does not mean their rights are cut off completely. Instead, the parent still has two major rights, even as a non-custodial parent.

Legal Custody

Unless the non-custodial parent has terminated his or her legal rights to the child voluntarily or through a court proceeding, that parent can still voice their opinions about the child’s upbringing.

When parents are married or work together to raise a child, they will generally make these big decisions together. However, when one parent has custody, the non-custodial parent can still have input into things like:

  • Whether the child needs a tutor
  • Whether the child should attend a specialized school
  • What religious beliefs will be shared and instilled in the child
  • Whether the child should get certain healthcare services.

While the custodial parent will often address issues as things come up day to day, both parents should work together to make big decisions that will significantly impact the child.


The other major right that a non-custody parent will have is the right to see their child through visitation. Visitation is also sometimes referred to as “parenting time.” Visitation can include both physically seeing the child as well as talking on the phone, texting, or making video calls.

One of the most common examples is that the non-custodial parent will have visitation set up for a standing weekend or two each month. But visitation can also be more frequent as well.

How Can a Non-Custodial Parent Lose Visitation Rights?

The parents will often set up their own visitation schedule and present it to the Court to get a court order to finalize it. Alternatively, the Court might set up the schedule without input from the parents.

Because the visitation scheduled is ordered by the Court, the custodial parent cannot restrict visitation on their own—unless there is a true emergency. Only the Court can change or limit a non-custodial parent’s visitation rights.

Keep in mind that visitation has nothing to do with child support. Even if you have not paid child support, the other parent cannot restrict visitation rights.

Visitation can be changed if the Court determines it is in the best interests of the child to make that type of change. Some of the most common reasons that visitation can be limited include:

  • Drug or alcohol abuse concerns
  • Anger issues
  • Neglect or inattention
  • Abuse
  • Mental or physical instability.

Visitation can be limited altogether, decreased, or supervised by a third party. Unless there is an extreme situation, the Court will not ban visitation altogether. Even in abuse cases, some form of visitation (often supervised) may still be permitted.

What Legal Responsibility Does the Non-Custodial Parent Have?

Every parent has the legal responsibility to provide support for their child. For a non-custodial parent, that support is generally in the form of child support or other types of financial support. Paying for the child’s healthcare coverage can be a form of financial support, for example.

When a child visits the non-custodial parent, that parent still has all of the typical responsibilities that come with caring for a child. Ensuring that the child has a safe place to stay and sleep and has food on the table are good examples of these general responsibilities.

Get Help Asserting or Defending Your Parental Rights

The team at Wolfe & Stec can help you assert or defend your parental rights, whether you are a non-custodial parent or a custodial parent. To learn more about our services or to schedule an appointment, call (630) 305-0222.

Attorney Natalie Stec

Natalie M. Stec, born and raised in Illinois, and earned her Bachelor of Science from the University of Illinois at Urbana-Champaign. Her practice has been concentrated in significant pre and post decree marital and family law cases; including custody, visitation, support, and paternity matters. She has important criminal defense experience in both misdemeanor and felony cases. She is a very dedicated and passionate litigator. [ Attorney Bio ]