What is a Custodial Parent?
The term custodial parent is commonly used when discussing child custody arrangements in divorce or separation scenarios. It refers to the parent that the child will primarily reside with, further identifying that parent as the custodial parent or custodial guardian of the child or children. In most states in the United States, a custodial parent will receive child support benefits if the child resides with them most of the time and is primarily dependent on them for financial assistance, care, and other aspects of parenting. Courts will generally review child support payments at certain intervals to address situations where one parent may have a child for a longer period or where they may be financially disadvantaged, and the other parent not responsible for child support has custody of the child for a substantial period . It will often reduce the amount of child support owed because the non-residential parent benefits less from the child being away from them while being supportive of child support benefits.
A court can award both physical and legal custody to one or both parents during a divorce proceeding or when seeking a settlement agreement or mandated order from a court system. Legal custody can be shared, in which both parents make decisions on all aspects of the child’s life or primary, in which only one parent makes the decisions. The standard definition of custodial parent and the legal rights of custodial parent status are functions of the law, but there can be remarkable differences in what a custodial parent assumes in parenting responsibilities despite the same terminology being used in different jurisdictions. A family law attorney can explain custodial parent and legal guardian terminology to those seeking assistance and advice in the legal system.
What is Guardianship?
In situations where a child does not have a steady parent to rely on, courts may appoint a guardian, or someone responsible for the care of a child. A guardian is appointed through an agreement between all parties or by a court, followed by either a designation in a will or an application to a court to be appointed as an adult guardian.
The guardian is chosen for their reliability and moral integrity. They are selected to care for the child when the parents are unable to. The responsibilities of a guardian may include providing food, clothing, financial support, education and medical care, but there are no set obligations.
The authority of a guardian is regulated by state law. Typically, guardians have nearly the same rights and responsibilities as a parent. They are typically given the same responsibilities as a parent, such as the responsibility to keep the child safe. This is meant to prevent guardians from doing things like having the child join the military. Consultation with the child’s attorney and financial planner is always advised.
Authority over a child by the guardian is taken away once the child turns 18 or the child dies. At that point, the guardianship ends. Alternatively, the guardian can resign or be removed, which will terminate the guardianship arrangement.
If the parent of the child has a will, this may include a provision for legal guardianship of the child in the event that the parent becomes incapacitated. The court will consider this request when appointing a guardian.
Custodial Parent vs. Legal Guardian: The Distinction
When it comes to the care of a minor child, there are a number of different titles that may be used to describe a person who is legally in charge of the child. For most people, the most frequently heard and understood terms are custodial parent(s) or guardians. However, the meanings behind these two terms are quite different. Read on to learn more about the key differences between a custodial parent and legal guardian.
Decision Making Authority: Both custodial parents and legal guardians are allowed to make decisions on behalf of the child. However, with a custodial parent, that decision making process is shared with the other biological parent or parents. In the case of divorce, decisions will be made jointly by both custodial parents, or may be divided in the court order. Alternative custody situations include primary and secondary parenting roles or sole custody to one parent.
With legal guardianship, there is no other biological parent so the custodian has no need to consult with any outside parties when deciding how to best raise the child. Essentially, a legal guardian has all the same rights as a biological parent when it comes to making decisions about the rearing of a minor child. As such, courts typically award guardianship only when absolutely necessary and after a thorough investigation into the home life of the guardian.
Legal Obligations: Another major difference is that a custodial parent has a legal obligation to support his or her child. Should the parent fail in his or her duties as a parent, the custodial parent will be held responsible for his or her actions. This means that the parent can be brought to court for a modification of custody, be responsible for child support or even face criminal charges for child neglect or abuse, if the facts are there.
For a guardian, this obligation does not exist. A guardian is under no obligation to provide financial support for the child under his or her care. Because the state’s Child Protective Services department has investigated the home environment of the child, they will have already ensured that all basic needs will be cared for. Should the need for financial support arise, the state will seek child support through the biological parents of the child.
Situations: One situation in which a guardian will be needed is when the biological parent is deceased. It is also used when the biological parent(s) is/are incapable of caring for the child, either due to incarceration, death or developmental disability. In this case, the court will generally pursue relatives of the child to see if they are willing and able to file for guardianship.
Custodial parenting and legal guardianship are two options available to those who have a child in their life and want to make a difference. Since both options come with their own set of legal rights and responsibilities, it is important to fully understand them before proceeding with either.
Legal Process to Get Custody or Become the Guardian
To become a custodial parent, you will likely need to petition the court and obtain a formal custody order. This is generally done if the biological parents are uninvolved or have died and it is in the child’s best interest that you have custody. Custody petitions can be granted even if there is no divorce or separation involved. In such cases, the petition for custody order is filed with the same court where a person might file for a divorce petition. It is important to note that custody arrangements and parenting plans must be approved by the court to be legally enforceable.
In order to submit a legal guardianship application, the biological parent must have passed away or become otherwise unable to care for the child. In such cases, a relative caregiver can petition the court for guardianship, which will grant them the necessary authority to care for the child. While some states might require the biological parent to surrender or terminate parental rights, other states do not. If parents retain some parental rights, they may have to sign off on the guardianship action.
The petition for guardianship generally requires that the relative caregiver provide an array of documentation that establishes their relationship to the child . All relatives who are older than 12 years old can be made parties to the case, and their consent must be obtained before guardianship can be awarded. A guardian must be a resident of the state in which the action is filed.
Once all the necessary documents are submitted and the required hearings are completed, the judge will issue an order that awards guardianship. While the judge may choose to dismiss the petition under certain circumstances, the chances for approval are generally high, especially when no parental rights are being taken away. As with custodial parent arrangements, guardianship plans must be approved by the court. While the process to obtain guardianship over a child can vary from state to state, all actions must be processed through the family court system and must involve formal hearings.
In most cases, guardianship actions are less formal than divorce and custody issues, especially when the biological parents still have some parental rights. However, these cases can be complicated if there is a history of abuse or if the biological parent(s) believe that they should retain custody over the children. In these cases, it is crucial to have an experienced family law attorney guide you through the legal process to protect your interests and the best interests of the children.
Child’s Well-Being and Benefits Considerations
The distinction between a custodial parent and a legal guardian can have important ramifications for the welfare and benefits of a child. Most notably, a custodial parent typically has the right to access information and make decisions in relation to various matters affecting the child, including healthcare, education, and the management of various benefits. For example, if a child is in need of medical treatment and the need for such treatment arises outside of the presence of the other parent, the custodial parent has the sole authority to make the decision to have the child treated. Whereas, a legal guardian may not have the right to make such a decision without notifying the other parent, or obtaining the consent of the other parent – depending on the circumstances and the specific order that has been made. This may affect how quickly and/or effectively a child receives the necessary treatment. Similarly, a custodial parent is typically responsible for managing and processing any other matters relating to the welfare and benefit of the child. For example, the Canada Revenue Agency may issue child benefits, and Employment Insurance child-care benefits, to the "applicant parent" for an eligible child during the time the child is under their care. A custodial parent will typically receive such benefits, however, a legal guardian may be able to make an application at the time the judgment for guardianship is made or shortly thereafter. The difference in the authorities and duties of a custodial parent versus a legal guardian will also affect some of the circumstances that may justify their involvement in legal matters or re-evaluation of their capacity as either a custodial parent or legal guardian. Disputes between parents and/or legal guardians may still arise as to the rights of the particular parent and/or legal guardian. This type of dispute arising from a conflict between parents and/or legal guardians can negatively impact and consequently vary the benefit that a child receives from such a determination. In some cases, a child may even be removed entirely from the care of one of the parents or legal guardians, and in other cases, one of the parents or legal guardians may not be granted the same rights that they may otherwise expect in relation to the custody of their child.
Modifying Custody or Guardianship
Even after a child custody or guardianship determination has been made, there are circumstances in the life of a child or parent that may require legal and physical custody to be altered. These changes are initiated when there is a significant change in circumstances, the child no longer resides with their current custodial parent, or if the parent or guardian is unfit to continue having custody over the child. For custody modification, the first requirement is to show a change of circumstance that warrants the modification. This can be anything from a change in school schedule, residence, or income of either the parents or guardians. The second requirement is the burden to show the best interests of the child demand a change in custody. The family court must conclude that modifying custody will serve the best interests of the child and is necessary for his or her welfare. The burden of proof is on the party seeking to modify custody. In general, in order for a custody order to be modified, 3 months must have elapsed since the existing custody order was entered . However, in certain cases, such as those involving substance abuse or domestic violence, the waiting period may not apply. If, however, the change in circumstances is the result of a custodial parent’s acts or admissions, such as parental alienation, efforts to manipulate the children’s affections or accomplishments, the party seeking the relief of a modification of parenting custody shall not have to wait for the three-month waiting period to elapse but may file a motion for modification immediately. In order to be granted guardianship of a person, There must be a preclusion against the parents’ ability to reasonably provide care and necessary supervision for their child. The person seeking to be appointed guardian must file a petition with the court requesting guardianship. After being appointed, the guardian has the authority to make all decisions regarding the child’s welfare. If the parents voluntarily relinquished custody of the child, which is a high standard, the parents’ rights are not terminated but instead, the parents’ rights yield to those of the guardian until the guardianship is terminated.