Who Has the Right to Custody During Noncustodial Visitation?

By Beverly Bird

Father and son (8-10) in field, playing aeroplanes, rear view

Maria Teijeiro/Digital Vision/Getty Images

Custody trumps visitation. It is never changed or altered simply because a child is visiting with her non-custodial parent. The rights of a parent who has sole legal custody, sole physical custody or both remain intact until and unless a court modifies them by issuing a new custody order. Whether a child sleeps over at a friend’s house, her grandparent’s house or her non-custodial parent’s house, the custodial parent still has custody during those times, according to the terms of the court order. However, this does not mean the custodial parent always has unilateral control over everything involving her child.

Physical Custody

Sole physical custody means a child lives full time with one parent. Joint physical custody means the child moves back and forth between her parents’ homes on a regular, relatively equal basis. Most custody orders that award sole physical custody to one parent include a detailed parenting time plan or visitation schedule with the other parent. This schedule establishes exactly when a child will spend time with her non-custodial parent, usually on a weekly basis. If a parent has sole or full physical custody, she does not lose her custodial rights during the times the child visits her other parent. The non-custodial parent is the child’s temporary physical custodian during those times, but this doesn’t impact or supersede the terms of the custody order.

Legal Custody

Unless one parent is extremely unfit or incapable, or the relationship between parents is so acrimonious that they can’t work together for the benefit of their child, courts in most states prefer to order joint legal custody. This means that both parents have an equal right to make all major decisions regarding issues such as their child’s education, non-emergency medical care and religious upbringing. When a parent has sole legal custody, she can make these decisions without input from the other parent. However, legal custody does not pertain to mundane, day-to-day decisions, such as bedtimes or play dates. A parent who does not have joint or sole legal custody of his child can make these kinds of decisions without consulting the other parent while his child is visiting with him.

Denying Visitation

Even when a parent has sole physical and sole legal custody, this does not give her the right to override the visitation schedule in the custody order. If she regularly denies the visitation called for in the order, a court can hold her in contempt for breaking the order. The same holds true when visitation is taking place. The custodial parent can’t exercise her custodial rights during visitation times by showing up at the other parent’s home and demanding that he return her child to her immediately, in opposition of the terms of the order.

Non-Custodial Parents’ Rights

In addition to visitation, a non-custodial parent usually has other rights regarding contact with his child. Most court orders provide that during times when he does not have visitation and when his child is living with her other parent, he can still have scheduled contact through telephone calls, computer programs such as Skype where they can see and talk to each other, or text messages and email. This doesn’t mean he has temporary physical custodial rights during these times. Nor can he make mundane decisions during these contact times. The child is still residing with her other parent, so that parent has the right to make daily decisions, such as terminating a phone call because it is the child’s bedtime. However, if she regularly interferes with contact time, a court can hold her in contempt just as if she denied physical visitation time.