How do I become the primary custodial parent?

The primary custodial parent is the parent whom the child lives with more than 50% of the time after the divorce.

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What's Inside

What's Inside

Child custody is one of the most difficult aspects of divorce for most parents. You want what’s best for your children, and so does your spouse, yet you may each have a different idea of what is “best”. 

If you want your child to live with you most of the time, you’re interested in becoming the primary custodial parent. This role comes with certain responsibilities, and there are different ways to be granted this role, as we discuss below.

What is a primary custodial parent?

In order to understand what a primary custodial parent is, first know that there are two types of child custody: legal custody and physical custody.

Legal custody refers to who has the power to make major decisions about how their shared minor child is raised, such as their education, religious worship and medical care.

Physical custody refers to the child’s place of residence and which parent supervises and takes care of them on a daily basis. Primary custody refers to physical custody.

The primary custodial parent is the parent whom the child lives with more than 50% of the time after the divorce. The other parent (the noncustodial parent) either houses the child for the remainder of the time, has visitation rights or has no visitation rights. The noncustodial parent also pays child support to the custodial parent.

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What are the primary custodial parent’s responsibilities?

It’s the primary custodial parent’s responsibility to provide their child with a safe place to live and to care for them on a daily basis. Essentially, it’s their job to ensure that their child has a comfortable home and is fed, clothed, healthy and enrolled in school.

Who’s the primary custodial parent in joint custody agreements?

Parents who share custody of their child have joint custody. Parents may have joint physical custody, joint legal custody or both.

If the parents share physical custody, both are considered custodial parents.

If the parents have joint legal custody and one parent has sole physical custody, that parent is the primary custodial parent.

How do I become the custodial parent?

There are two main ways you can become the custodial parent during the divorce process: mediation and a trial.

Spouses who wish to avoid going to court and who can and are willing to work together to reach a divorce agreement may choose to try mediation. During this process, a mediator (an impartial third party) helps guide the spouses through discussions of the terms of their divorce. (This process is often less expensive than going to trial, which is why it’s frequently a first resort.) In some instances, the court may order mediation before hearing a trial on the issues. You can choose to hire an attorney to represent you and advocate on your behalf at mediation.

If the outcome of mediation is that your spouse ultimately agrees that you should be the custodial parent, that will be listed as part of your settlement agreement, along with the amount of child support that parent has agreed to pay. A judge reviews the entire settlement agreement. If they determine the agreement is fair, they sign off on it, making it legally binding.

If you’re unable to reach an agreement through mediation, your case will proceed to trial. You may hire a lawyer to represent you and argue your case in court. After hearing both sides, a decision will be made about custody, and the court will issue a ruling upon which the custody order is based. 

Can you change who’s the primary custodial parent?

The specific rules around modifying child custody terms differ slightly by state. (Speak with a family law attorney to familiarize yourself with the laws and regulations in your area.) The general rule is that if you’d like the terms changed, you need to file a petition for modification with the court where your divorce was finalized. 

To successfully change who’s the primary custodial parent, you must prove there’s been a significant change in life circumstances since the divorce was finalized. A lawyer can walk you through how to go about doing this given your specific situation. Examples of significant life changes may include: 

  • The custodial parent has to move for work, which means taking the child away from the other parent and switching school districts. 
  • There’s evidence that the custodial parent has become abusive or has developed an addiction.

The court always considers the best interest of the child when weighing whether to change a custody order. 

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Talk to a lawyer

No matter where you’re at in your divorce process, if you wish to become the primary custodial parent of your child, working with a lawyer can be advantageous. They can help build your case, taking into account your local laws as well as your wishes, and present it in the best light before a mediator or the court. 

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Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

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