Are "parental rights and responsibilities" the same as custody?
Yes. The phrase "parental rights and responsibilities" is used interchangeably for the term "custody." It means the continued, legal obligation that a parent has to care for a child. It includes the right to live with a child, visit a child, or make important decisions impacting the child’s welfare. If parents can’t agree together on the best way to divide their rights and responsibilities, then a court will come up with a plan for them.
What are the different ways parents (or courts) can divide parental rights and responsibilities?
There are three basic plans or methods that parents (or courts) generally follow to divide parental rights and responsibilities: shared rights and responsibilities, sole rights and responsibilities, and allocated rights and responsibilities.
If you have shared parental rights and responsibilities, that means both parents have equal access and control over parenting a child. Parents who share parental rights and responsibilities must keep one another informed of any major changes affecting the child's welfare and are required to consult in advance to the extent practicable on decisions related to the child's welfare. Even with an award of shared parental rights and responsibilities, it’s possible for only one parent to provide the "primary residence" for the child (the place the child lives more of the time). On the other hand, the award may order a sharing of the child's primary residential care by both parents.
Sole parental rights and responsibilities, means one parent alone takes care of the child. Although a parent may receive child support from the other parent, the parent with sole rights and responsibilities provides the home for the child and controls all the important decisions. The other parent may have the right to visit the child, but will need permission before taking the child out of the primary parent’s physical control. The details and limits of support and visitation will depend on the conditions the parents agreed to together, the court has imposed, or both.
Allocated parental rights and responsibilities means that parents split their duties. This is different from shared parental rights and responsibilities, which is a joint effort. For allocated rights and responsibilities, the parents control various aspects of a child's welfare separately. These duties – like providing the child’s primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, and travel boundaries and expenses – may be divided between parents exclusively or proportionally. Regardless of the control allocated, a parent still may be required to inform the other parent of major changes in that aspect of the child's life.
How does the court assign parental rights and responsibilities?
The "child’s best interests" are the cornerstone to any parenting court order. Above all else, the court considers the safety and well-being of the child, which many not necessarily match the preferences or desires of a parent. The court determines the child’s best interest by applying a list of factors to the particular case and considering any other factor that has a reasonable bearing on the physical and psychological health of the child.
The listed factors include:
- the child’s age
- this child's relationship with his or her parents or other important figures in the child’s life
- the child’s preference, if the child is old enough to express a meaningful preferences (e.g., it can't be based on something immature, such as "mommy has a pool")
- the stability of any proposed living arrangements for the child
- the adequacy of the child’s current living arrangements and adjustment to present home, school, and community
- the parent’s motivation in caring for the child
- each parent’s capacity to allow contact between the child and other parent, and
- how well the parents cooperate in childcare decisions and in resolving disputes.
Where there has been abuse, criminal activity by one parent, or if the child is very young, then the court takes special consideration of those circumstances as well. For example, it matters if a child under one year of age is breast-fed.
Are mothers given preference over fathers when deciding where children, especially small children, should live?
No. A court may not give preference to one parent over the other based solely on the parent's gender or the child's age or gender. However, a court will not ignore situations like a very young child’s need to be breast-fed by the mother or an adolescent child’s bond with the father, because the court must consider the overall physical and psychological health of the child. Nonetheless, the court can’t give extra weight to age and gender alone.
If I leave the family home, can I still get the parental rights and responsibilities I want?
The court is going to prioritize your child’s best interest over the rights and responsibilities you want. Otherwise, the reason why you left the family home usually won’t count against you. If you left the home because the other parent either asked you or insisted that you leave, then that has no impact on a court’s decision on what your parenting rights will be. Also, if you left because the other parent harmed you physically or threatened you with physical harm, then your leaving will not count against you. By the same token, such harm will very likely count against the abusive parent.
If you left for some other reason, however, the court may consider this departure and the reasons behind it when deciding how to award parental rights and responsibilities.
What happens if a parent violates an order concerning parental rights and responsibilities?
If a parent violates an order – say you had custody rights for the weekend but the other parent refused to drop off your child – then either of you can ask the court for a hearing. If the court decides that a parent violated a part of the order, the court may find this parent in contempt, which could carry a fine of at least $100. Also, the court could give the wronged parent additional visitation to make up for the time lost with the child and could even modify (change) the existing order with more specific terms and conditions.
If there is no order determining parental rights and responsibilities, who has the rights to the child?
If there is no outstanding court order, the father and the mother are the joint, natural guardians of their minor child and are both entitled to the care, custody, and control of this child. Neither parent has rights superior to the other.