What Happens When a Mom Gives Up Custody?
By Beverly Bird
Legally, the ramifications of giving up custody of children are not gender-specific. The non-custodial parent sees her children much less than she would if she had retained custody. Practical issues of giving up custody can affect her finances. Often, a mother who gives up custody also becomes a social pariah; friends and family can’t understand why she did so. However, fathers are petitioning for full custody more and more often in the 21st century, and some mothers realize that their children might actually be better off with their exes.
Most state legislatures provide for two kinds of custody: legal and physical. When a mother gives up physical custody, her children live with their father most of the time. When she cedes legal custody, she no longer has any say in major decisions that affect their lives. A woman who relinquishes legal custody has no involvement in what schools her children attend, whether they should receive non-emergency medical care or even whether her children are old enough to stay alone in the evenings for a period of time. She has little to no recourse to protest if her children’s father makes parenting decisions that she does not approve of. If her children become sick during times when they’re with her, she may not even be able to access their medical records. She has no legal right to attend parent/teacher conferences.
A non-custodial parent must pay child support to the parent with whom her children live. When the non-custodial parent is the mother, she may already be dealing with an extremely tight budget post-divorce or after separation. According to the U.S. Census Bureau, among full-time workers in 2009, men's median income was about $10,000 higher than women's. When mothers must pay child support from a smaller income, this can affect their care of their children during the times when they have visitation.
Loss of Tax Benefits
Non-custodial parents lose several tax benefits, regardless of gender. Unless children from another relationship or marriage continue to live with them, taxpayers without a dependent cannot claim child tax credits, childcare tax credits or earned income credits. They cannot claim dependency exemptions for children who don't live with them. In a dispute over which parent has the right to claim children as dependents, the IRS gives the exemption to the parent with whom the children live most of the year.
Even when a mother relinquishes physical custody because she believes it is in her children’s best interests, she should speak with an attorney about trying to achieve joint legal custody. This ensures that she will have some say in her children’s lives. When a divorce is amicable, parents can also supersede IRS rules if they want to. They can specify their own terms in their custody order, decree or marital settlement agreement. If parents have two children, one parent can claim each of them yearly, or they can alternate the exemptions yearly. The IRS will honor such agreements, as long as both parents don’t try to claim the same child.
- Dishon & Block: Physical Custody vs. Legal Custody
- Internal Revenue Service: Publication 501
- National Association of Non-Custodial Moms: Three Areas of Focus
- Chicago Tribune: Moms Without Custody Need Help, Support
- U.S. Census Bureau: Men’s and Women’s Earnings for States and Metropolitan Statistical Areas – 2009 (PDF)
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.