Non-Custodial Parent

A non-custodial parent is one who does not have custody of his or her children. While a non-custodial parent may enjoy visitation with the children, and may even be actively involved in their lives, the children do not actually live with the non-custodial parent. This means that a non-custodial parent does not have primary physical custody of his or her children. To explore this concept, consider the following non-custodial parent definition.

Definition of Non-Custodial Parent


  1. A parent who does not have primary physical custody of his or her children.

Origin of Custodial

Circa 1678       Latin custōdi(a)

What is a Non-Custodial Parent

A non-custodial parent is a parent who does not have primary physical custody of his or her children. For example, a non-custodial parent may have visitation with the child that lives primarily with the other parent. This can either be done through a mutual agreement by the parents, or with the help of the court system if the parents are unable to come to terms on their own. Even if one parent is granted primary physical custody of the child – making him or her the “custodial parent” – the other parent (non-custodial parent) may have shared legal custody. This is important in determining who has decision-making authority over the child in the eyes of the law.

Types of Child Custody

Some parents can come to a mutual agreement without court intervention insofar as the types of child custody arrangements they will follow. For others, however, it is up to the courts to decide which parent the child will live with, which parent will be primarily responsible for the child, and whether both parents will share custody. Typically, a custody agreement remains in effect until the child reaches adulthood, which is 18 years of age in most states.

There are several types of child custody agreements, though an arrangement may be modified if the parties are unhappy with its terms. What follows is a brief description of the more common types of child custody arrangements that families are directed to follow.

Legal Custody

There are two types of legal custody arrangements: joint legal custody, and sole legal custody. The term “joint legal custody” refers to the parents’ sharing of the legal rights and responsibilities that influence the child’s health, education, and general welfare. Joint legal custody requires that the parents communicate regularly with one another, making important decisions together.

Sole legal custody, on the other hand, means that only one parent has the right and responsibility to make decisions that have an effect on the child’s health, education, and welfare. In these situations, the non-custodial parent is granted visitation, but does not live with the child, and cannot make such decisions as which school the child will attend, whether the child should have recommended surgery, or give permission for the child to attend a field trip.

Physical Custody

The term “physical custody” refers to the parent with whom the child physically lives. When parents share joint physical custody, this means that each parent spends regular time with the child in his or her own home. When parents share physical custody, the courts will usually require parents to design a parenting plan to make sure that there is consistency in the child’s life, and that the plan is in the best interests of the child. The plan may also provide for which parent’s house will be considered the child’s official residence for the purpose of school and medical records.

When one parent has sole physical custody, this means that the child is to live with that parent, and be under that parent’s supervision in the eyes of the law. The non-custodial parent then visits with the child in accordance with the terms of a previously established visitation agreement.

Joint Custody vs. Sole Custody

In a joint custody arrangement, the parents share legal and physical custody over the child. This means that both parents participate as equals in making decisions about raising the child. The parents also split their time as to day-to-day responsibilities, including where the child will live, with whom, and when.

While most jurisdictions label any shared physical custody arrangement as “joint custody,” truly joint – or 50/50 physical custody – is rare because this can cause both personal and practical difficulties. Such difficulties include disruption of the child’s routine, and the costs of maintaining two separate residences for the child.

Typically, each home is expected to be equipped with enough food and clothing for the child to ensure that the child’s routine insofar as school and extracurricular activities remains uninterrupted. Additionally, each parent must maintain a separate bedroom or sleeping space for the child, which can become an issue if one parent needs or wants to relocate.

Gender Role in Custody

The historic norm for gender role in custody has seen the mother being the primary custodial parent, and the father being the non-custodial parent who visits on weekends. However, as time has gone on, it has become apparent that the gender role in custody is evolving. Nowadays, the courts recognize the importance of both parents in their children’s lives. As a result, it is increasingly common to see fathers assuming physical custody, and taking on the same child-rearing duties as mothers often do.

While there are still three times as many single-mother households as there are single-father households in the U.S., the courts have become more focused on determining what is best for the child – and what is best is for the child is not always simply being under the mother’s exclusive care. However, fathers still encounter bias with regard to how others view their ability to parent. Mothers too experience bias insofar as the gender role in custody. For example, non-custodial parents who are mothers often encounter people who wrongfully assume the worst, thinking she is unfit or unwilling to mother her children.

In many cases of mothers being non-custodial parents are simply due to scheduling conflicts that are the basis for the mother’s willingness to become the non-custodial parent. It may just be in the best interests of the child to live with the father, be it the proximity of his father’s house to his school, his mother’s unpredictable schedule, or some other such reason. Just as a mother who is a non-custodial parent is not necessarily unfit to parent, neither should a father raising his children as a single father be assumed to be inept.

Best Interests of the Child

Some non-custodial parents voluntarily give up custody out of love. It is not because they are happy about spending less time with their children. Rather, a non-custodial parent may give up custody because he or she believes it will be in the best interests of the child. It may be easier on the child to not have to travel between both parents’ homes. Therefore, it may be in the best interests of the child to have the child live with one parent, rather than to disrupt the child’s school schedule and other commitments by forcing him to travel back and forth.

There are, of course, some situations where it is best for the child to live apart from the non-custodial parent, whether the non-custodial parent is okay with it or not. These situations may concern the non-custodial parent having a drug addiction, or living with a boyfriend or girlfriend who is found to be abusive or an otherwise toxic presence in the child’s life. It may therefore be the best thing for the child to be removed from that type of situation.

Generally speaking, there are five factors the courts consider when determining the best interests of the child. These factors include:

  • The ability to effectively parent – This includes providing for such physical and emotional needs as food, shelter, clothing, healthcare, education, parental guidance, and loving support. Also considered by the courts are the parents’ physical and mental health.
  • The ability to maintain consistency in the child’s routine – This includes living arrangements, access to members of the child’s extended family, and school or daycare routines.
  • The child’s age – Younger children tend to need more attention and care than older children. Some courts will hear from the child on what the child wants, depending on his age.
  • The child’s safety – Of course, if the courts believe one home to be safer than the other for the child, then the child will be placed with the safer of the two.
  • The effect of changing an existing routine – Judges try to keep any changes that would have a negative effect on a child’s routine to a minimum.

Situations that would be considered to be not in a child’s best interests are those that involve the denial of one parent’s access to the child, or situations wherein visitation with the child would be made difficult. Courts try to allow children to remain in their same schools and neighborhoods, and to keep them in the routines with which they feel most familiar. This is why a parent’s decision to move is often considered by the courts to not be in the best interests of the child.

Non-Custodial Parent Rights & Responsibilities

A non-custodial parent’s rights and responsibilities don’t differ much from those of a custodial parent. For one thing, a non-custodial parent is still responsible for paying for things the child needs via child support. For another, the child may still need and want his non-custodial parent in his life just as much as he needs and wants his custodial parent.

Some believe that non-custodial parent rights and responsibilities don’t exist, that non-custodial parents are simply deadbeats. This is a myth. It may look to some like all non-custodial parents are deadbeats because it is always the non-custodial parent who owes child support to the custodial parent. There are plenty of parents, however, who uphold the non-custodial parent’s rights and responsibilities fervently, including but not limited to paying child support on time every month, and making sure the child spends time with the other parent.

Child Support

The amount of child support a non-custodial parent is directed to pay toward a child’s education and lifestyle is typically determined at the state level. However, there are more general guidelines that can be applied across the board. Some states give their judges more discretion than others when determining child support amounts, so long as they follow the general guidelines, while other states have tighter restrictions.

The courts usually determine a child support figure by taking into account the amount of time or overnights each parent spends with the child, as well as both parents’ income, earning potential, tax status, and other factors that are specific to each parent.

The courts try to account for as many of the child’s present and future needs as possible when determining child support, and either parent may request changes to the child support order when significant changes take place. Costs that may necessitate sharing of expenses include those associated with:

  • Education
  • Daycare
  • Health insurance
  • Special needs, if applicable

Also considered by the courts are the income and needs of the custodial parent, along with the non-custodial parent’s ability to pay the amounts determined.

Non-Custodial Parent Example Involving Child Support

An example of a non-custodial parent in a court case can be found in a case where the non-custodial parent was ordered to pay what can only be described as outrageous amounts in child support. Here, Carolyn and Bryan Baraby got married in 1978, and had two children together. Carolyn filed for divorce in February of 1995. In November of that year, the couple separated and agreed to share equal physical custody of the children by alternating weeks.

In July of 1997, the parties agreed to a separation agreement that continued their custody arrangement and resolved all of their outstanding issues, save for child support. Several orders were issued to both set and adjust Bryan’s child support obligation.

To arrive at a monthly child support amount, the court reduced each parent’s monthly child support obligation by half, then averaged out those amounts to arrive at a number that Bryan was to pay to Carolyn every month. As a result, however, Bryan was ordered to pay an amount that nearly quadrupled the original figure for 1995 and tripled the figure for 1997. This was after the court gave Bryan credit for payments already made voluntarily from November 1995 through July of 1996, and after the court determined that Bryan had overpaid Carolyn for some months.

The court permitted Bryan to recoup the overages from his future payments, but in an amount not to exceed $50 per month. Finally, the court directed Bryan to pay to Carolyn 77% of all childcare expenses. Both Carolyn and Bryan appealed the court’s decision. The appellate court agreed that the support order should be modified, but disagreed that the lower court’s order of 77% of childcare expenses was unreasonable. Said the court:

“We do not agree with defendant’s argument that Supreme Court erred by directing him to pay 77% of plaintiff’s child care expenses beyond the summer school vacation of 1997. Plaintiff testified that she had just started using daycare services every other week when the children were in her custody and would use those services ‘at least through the summer’ but ‘probably not’ during the school year. Because there is no evidence in the record that plaintiff discontinued daycare services during the school year, we cannot say, under the particular circumstances here, that the court abused its discretion. If defendant believes that plaintiff is not incurring childcare expenses his remedy is an application to modify the order.”

Ultimately, the court ordered that the case be remitted back to the family court for the purposes of re-determining the child support award.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.