What is the Difference Between Custody and Parental Rights?

People often swap these two terms without knowing that they are not interchangeable. Custody and parental rights are two different things. And, they legally affect you and your child in different ways.

To help clear up this common source of confusion, we’ll answer some of the questions that Jennifer and Catelyn are most frequently asked about parental rights vs. physical custody. Don’t see your question answered below? Feel free to contact us with questions about your circumstances.

FAQ About Child Custody and Parental Rights

Here, you’ll likely find answers to your questions regarding child custody vs. parental rights, as well as adoption vs. legal custody:

“Are custody and parental rights the same thing?”

No.

“So then, what is the difference between legal custody and parental rights?”

One of the questions that Jennifer and Catelyn most commonly hear is, “What's the difference between parental rights and custody?” Here are some quick definitions that may help clarify the difference between parental rights and custody:

  • Parental rights: The right to seek legal and/or physical custody of your child and make decisions regarding your child subject to any court orders.
  • Legal custody: The right to make health care, religious and education decisions regarding your child.
  • Physical custody: The right to have your child live with you and the ability to make day-to-day decisions while your child is in your physical care.

“Is permanent custody the same as adoption?”

No. There is a lot of confusion regarding permanent legal custody vs. adoption. Similarly, clients often ask about the difference between sole custody and termination of parental rights.

The difference has to do with the legal parental rights. A guardian or family member may permanently take care of a child in their home, but that doesn't necessarily mean that they are the legal parent of that child. To become a permanent parent to that child (in a very important legal sense), that person would need to legally adopt that child.

Permanent custody or sole custody and parental rights termination is not the same thing. Even if one parent is granted full/permanent/sole custody of a child, the other parent still has legal parental rights.

“So then, what is the difference between custody and adoption?”

Custody is not the same thing as parental rights. For example, when a couple divorces and custody is determined, both parents will still retain their legal parental rights to the child, even if one parent does not have custody.

Courts do not terminate parental rights when making custody and visitation decisions. A termination of parental rights is a separate action where the parent’s constitutional rights are terminated and they no longer have the right to ask to see the child anymore. The legal termination of those rights by the court is a permanent action. In Maryland, Washington, D.C. and Virginia, this only happens in Department of Social Services cases and in final adoption hearings.

Only when the parental rights have been terminated in court can a child become eligible for adoption.

“If someone gives up custody is that adoption?”

No. If someone’s parental rights are voluntarily or involuntarily terminated, and those rights are permanently and legally granted to a new parent — that is adoption.

“Is losing custody the same as having parental rights terminated?”

Although some parents facing custody loss will worry, “Are parental rights revoked in custody cases,” the answer is: No. Parental rights are not addressed in custody hearings.

Most of the time, biological parents retain their legal rights even if they lose custody. Termination of parental rights usually only happens if the Department of Social Services gets involved or through adoption.

“Can I give permanent custody without giving up parental rights?”

In some situations, yes. But, this is something you’ll need to consult with your attorney about.

“Can a parent relinquish parental rights in a custody case?”

Typically, no. In custody cases, the parent can't voluntarily terminate their parental rights. However, if you no longer wish to have legal or physical custody of your child, and you don't want to be involved in any decision-making regarding your child, you can communicate this to the court.

Have more questions about the difference between custody and adoption? You can contact us any time. We're here to help parents make the right decision for their children and themselves, even in tough situations.

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax