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Non-Custodial Parent Rights

UPDATED: June 19, 2018

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Non-custodial parent rights depend on whether the parent has joint legal custody with the custodial parent. There are two types of custody: physical custody and legal custody. Physical custody refers to where a child actually lives most of the time, while legal custody refers to a parent's right to make decisions about a child's upbringing and general wellbeing. Parents can have sole physical custody or joint physical custody, or sole legal custody or joint legal custody. When a parent is said to be non-custodial it generally refers to physical custody and means that the other parent has sole physical custody of the child. If a non-custodial parent—or one without joint physical custody—is also without joint legal custody, then often the only absolute right of the non-custodial parent is to enjoy visitation with the child as ordered by the court.

However, it is also true that regardless of what type of custody the parents have, each parent's rights with regard to where a child spends time are limited to the custody agreement or custody order. Therefore, if the agreement or the order state that the child is to spend weekdays with one parent and weekends with the other, both parents have equal rights to have the child during the time allotted them regardless of who has physical or legal custody.

The non-custodial parent has a right to enjoy visitation with the child which is as important as the time the child spends with the parent who provides primary residence. The parent with sole custody may not deprive a non-custodial parent of visitation by not producing the child any more than a parent without custody can fail to return a child after a weekend of visitation. Either parent may be found in violation of the court order and may be found in contempt of court for failure to allow the child court ordered time with the other parent.

In fact, a parent with sole custody who fails to allow the non-custodial parent court-ordered visitation time may lose physical custody of the child This is because the court often sees deprivation of visitation as an attempt by the custodial parent to stifle the child's relationship with the non-custodial parent. Courts recognize that healthy relationships with both parents are in the best interests of children, and sometimes change child custody orders so that the parent most willing to allow the child a relationship with the other parent has more time with the child.

Rights of a Non-Custodial Parent with Joint Legal Custody

A non-custodial parent who despite having no physical custody of the child does have joint legal custody has more rights than a non-custodial parent without legal custody. A non-custodial parent with joint legal custody has the right to share in important decisions in the upbringing of the child along with the custodial parent, such as decisions about education, religion, and important medical decisions. Parents with joint legal custody are expected to partake in the raising of the child regardless of where the child spends most of his or her time.

Rights of a Non-Custodial Parent without Legal Custody

A non-custodial parent without joint legal custody of the child may not be entitled to participate as significantly in the child's upbringing. Since most modern courts award joint legal custody to parents, a parent without joint legal custody is likely to have been deprived of legal custody for a reason, such as a history of domestic violence or drug abuse or perhaps notable inability or unwillingness to parent. Therefore, the overall rights of that parent may be deliberately limited by the court with the idea that the participation of that parent in the child's upbringing isn't in the best interest of the child.

However, a non-custodial parent without legal custody who was not deprived of legal custody due to a history of abuse or a similar reason may find it easier participate in the child's upbringing to some extend. For example, the parent may be able to request information about the child's wellbeing from the custodial parent, such as reports from school, medical information and the like. A non-custodial parent who desires information about the well being of a child in the form of report cards or physical health updates should request such information from the custodial parent, as long as the non-custodial parent has not been ordered to refrain from such communication by a court. A non-custodial parent should not make trivial or frequent requests, as they may be seen as attempting to harass the custodial parent.

Information for Non-Custodial Parents

If a custodial parent refuses to provide information about the child to the other parent, where the information is important, a non-custodial parent without joint legal custody may bring the matter to the court's attention with a request to order the custodial parent to provide reasonable information. However, this should be discussed with a lawyer, a parent should not file such a motion on their own. This is because circumstances surrounding the custody arrangement may dictate that such a request would be unwise, and in some cases could result in reprimand by the court.

In addition, some states may allow non-custodial parents certain rights. Some state courts provide information on these rights in a self-help department at the local court house. The clerk of the family court will likely direct a parent to the best source for custody-related information. Otherwise, a local family law attorney or child custody lawyer has access to this information.

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