Visitation is the legal term for the right of a non-custodial parent to visit with his or her children. Typically, the non-custodial spouse has a legal right to parenting time, unless the family court finds that visitation is not in the best interest of the child. States vary in their approach to visitation rights; although, it generally consists of alternating weekends and some holidays. The amount of time and visitation schedule is stated in the final divorce agreement and may be modified by further court order. It is important to have an experienced attorney representing you in the negotiation of your divorce agreement so that you are assured of protecting your visitation rights.
Generally speaking, visitation is considered only a privilege granted to the non-custodial parent of the child of the family. At or around the age of 13, depending on the state, a child may choose in which parent’s home to live without government interference.
Best Interests of the Child
Parents (and in some jurisdictions grandparents) frequently believe that they have a right to visitation or access; however, many courts have used the subjective doctrine of the best interests of the child to deny parental or grandparental access to the child(ren). This is commonly found in cases when custody of the child(ren) is disputed, and there is a history of interference with visitation. In such high conflict cases, there are often allegations of child abuse and/or domestic violence. If you have been denied visitation rights and you do not believe it is in the best interests of your child, a family law attorney can represent your interests in court.
Supervised and Non-Supervised Visitation
When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised. This means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed on by the parents or appointed by the court. No matter how the adult is chosen, he or she must be approved by the court that ordered the supervised visitation.
Many noncustodial parents have visitation orders that allow the child to visit with them without any supervision. These visits often take place away from the custodial residence. Often the noncustodial parent is granted overnight visitation, weekend visitation, or vacation visitation.
Joint Custody Agreements
Parents may also share custody and may agree to allow visitation. In these situations a court order may not be needed, though sometimes it is obtained to forestall later disputes about what the parents had previously agreed to, and to allow the courts to have some oversight over the children (which they normally have under statute and under the parens patriae power).
When a court determines the visitation rights of a noncustodial parent, it usually orders “reasonable” visitation, leaving it to the parents to work out a precise schedule of time and place. This allows the parents to exercise flexibility by taking into consideration both the parents’ and the children’s schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times, and duration of visits. He or she isn’t legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible.
If you’ve already agreed to reasonable visitation and it isn’t working out — for example, one parent is consistently late, skips scheduled visits, or doesn’t inform the other parent where he or she is planning on taking the children — you can go back to court and ask that the arrangement be changed. If you feel that your ex-spouse is not affording you the “reasonable visitation” to which you are entitled, a family law attorney can help you.
What is a Fixed Visitation Schedule?
Sometimes courts will set up a detailed visitation schedule, including the times and places for visitation with the noncustodial parent. A court will be inclined to order a fixed schedule if the hostility between the parents is so severe that the need for regular contact between them may be detrimental to the child. A fixed visitation schedule can still be generous, but it removes opportunities for one party to control the other party’s time and allows the children to experience predictability in an often unsettling period.
All 50 states currently have some type of “grandparent visitation” statute, through which grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with their grandchildren. State laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances, and the courts give great deference to a parent’s decision to limit grandparent visitation.
Your child’s grandparents may take you to court to try to force visitation. If there is a reason why your child should not visit with a grandparent, you should have a family law attorney represent your interests in court.