What Are the Rights of a Custodial Parent vs. a Non-Custodial Parent?

What Are the Rights of a Custodial Parent vs. a Non-Custodial Parent?

What is a Non-Custodial Parent?

Child custody terminology can be confusing. But understanding the basic principles of what it means to be a “custodial parent” and what “legal custody” means will help you understand each parent’s different rights and responsibilities.

In a divorce or child custody case, the court determines what rights each parent has. The “custodial parent” is who the court orders the child to live with most of the time. The custodial parent typically provides the child’s primary home and cares for daily physical and emotional needs.

Therefore, the “non-custodial parent” physically has the child less than 50 percent of the time. Being a “non-custodial parent” isn’t a negative thing and doesn’t mean the parent isn’t present. It’s important to know that a non-custodial parent can bear an equal share in the responsibilities of parenthood. The court order will outline the rights and responsibilities of the non-custodial parent as well as the rights and responsibilities of the custodial parent.

Different Types of Custody

Determining the child’s primary residence is not the only way a parent can have custody. Parents have two types of custody when it comes to their children: physical and legal.

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

In common conversations, when someone says a parent has “custody,” they mean physical custody, or who the child lives with as the primary residence. Legal custody stops only if a parent’s rights are terminated. You do not lose legal custody just because your child does not live with you. Therefore, both parents typically maintain legal custody.

A non-custodial parent is the parent that does not have primary physical custody. Just because a parent does not have physical custody does not mean that they do not have legal custody. That parent will often have visitation rights. For example, when parents live too far apart to reasonably share physical custody, the parent with whom the child does not reside will still jointly make decisions for the child.

What Rights Does a Non-Custodial Parent Have?

A parent who does not have the child residing with them will still retain two major rights, legal custody and visitation.

Legal Custody

Unless there is an order terminating the non-custodial parent’s rights, that parent can still voice their opinions about the child’s upbringing. In other words, the non-custodial parent retains certain decision-making authority.

When parents are married or raising a child under the same roof, they will generally make parenting decisions together. However, when one parent has physical 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 instilled in the child
  • Whether the child should get certain healthcare services.

While the custodial parent will often address issues as things arise day to day, both parents should work together to make decisions that will significantly impact the child. This means that the custodial parent should communicate with the non-custodial parent about health and education. The two can and should share responsibilities, which helps provide routine and consistency for the child. When parents disagree about a significant matter, they must ask the court to decide the issue.

If the custodial parent does not allow the non-custodial parent to participate in decisions involving legal custody, the non-custodial parent has the right to seek enforcement of the court order that awarded the legal custody rights. For example, if the custodial parent regularly singlehandedly decides whether and what medication the child should receive, the non-custodial parent can take the custodial parent to court. To ensure the non-custodial parent is able to exercise their legal rights, the custodial parent should make sure that the other parent has up-to-date information about health, grades, and activities. The custodial parent is in the best position to facilitate a relationship between the child and the non-custodial parent.


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

A common example is that the non-custodial parent will have visitation set up for a standing weekend or two each month, along with certain holidays. But visitation can be more frequent or for longer periods as well.

The visitation schedule will be ordered by the court. This guarantees that the non-custodial parent will be able to spend certain days and times with the child. That means that 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.

Unless the non-custodial parent is legally prevented from having any contact with their child, they must be allowed to maintain contact and be given the opportunity to visit. This means the custodial parent is obligated to make the child available for visitation according to the times in the order. If the custodial parent refuses to honor the court’s order, the non-custodial parent has the right to ask the court to enforce the order.

Keep in mind that visitation has nothing to do with child support. Even if a parent has not paid child support, visitation cannot be restricted. The right to visit still exists.

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 payments 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 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.

What Are the Custodial Parent’s Responsibilities and Rights?

Whenever a parent physically has the child, they are responsible for:

  • Providing food, clothing, and shelter
  • Making sure the child attends school and medical appointments
  • Making sure the child has appropriate daily hygiene
  • Facilitating court-ordered visitation
  • Providing transportation for the child’s activities, and
  • Anything else as ordered by the court.

Additionally, the custodial parent generally has a responsibility of informing the non-custodial parent if they intend to move. This is important because it could impact visitation, the child’s schooling, and where the child receives healthcare. The custodial parent may need to seek modification of the court’s order before moving. The non-custodial parent may be able to contest a custodial parent’s move.

Keep in mind that either parent can seek changes to the court’s order. Therefore, the custodial parent has the right to take the non-custodial parent back to court to change the visitation schedule, or even child support.

Whether you’re the custodial or non-custodial parent, you have duties to your child. It doesn’t matter what the court labels you, you should put the child first and work together to provide the child with the best life possible. The more cooperative you can be, the happier and healthier the child will be.

Regardless of whether you’re a custodial or a non-custodial parent, we can help enforce your rights. For a free consultation, contact Wolfe & Stec at 630-305-0222.

Attorney Marc Wolfe

Marc Wolfe has been representing clients in criminal matters in Chicago and the entire State of Illinois for over 30 years. Mr. Wolfe has tried over 300 cases to verdict and represents clients facing investigation or prosecution for a broad range of state and federal criminal offenses, including murder, embezzlement, sexual abuse, drugs, marijuana and white collar crimes. [ Attorney Bio ]