Visitation Rights of Non-Custodial Parents

In a divorce where one parent is awarded physical custody of the child, the non-custodial parent is usually awarded visitation rights. Child visitation rights are considered a privilege, rather than an automatically granted right. In cases where child visitation rights are denied, the non-custodial parent may still be ordered to pay child support to the parent with physical custody. Child support responsibilities and child visitation rights are two separate matters in the eyes of the family court of law.

Visitation rights may be determined by the agreement of the parents or by a court order if the parents cannot agree. Courts will generally consider the wishes of the child, if age appropriate, when reviewing custody and visitation issues. Visitation rights are important; not only to the parent, but to the children as well. The length and type of visitation may be decided according to the age of the child.

In order to avoid conflicts, a parenting plan can cover how the visitation will be carried out. The parents can draft a specific agreement which may include:

  • Specific weekends
  • Overnight visits
  • Pick up and drop off times and locations
  • How the exchange will be made
  • A schedule for birthdays, holidays and special occasions

Supervised visitation may be ordered when the children's safety and well-being require that visits with the other parent be supervised by another adult, or a professional agency. In situations in which contact with a parent would be physically or emotionally harmful to the children, the court may order that the parent be allowed no visitation with the children. If needed, the court can appoint an attorney to represent the child. This type of attorney is known as a Guardian Ad Litem.

Custodial Parent vs. Noncustodial Parent

The custodial parent is the individual that has primary physical custody of the child. The child does not reside with the non-custodial parent except during the time that the non-custodial parent has visitation. The courts generally encourage frequent and regular visitation when the parents live in the same locality and when it does not interfere with a child's school schedule. If the parents live a long distance from one another, liberal visitation is usually provided for school breaks and summer vacations.

Who Determines the Visitation Terms?

Many states have adopted new laws which require the parents to draft a parenting agreement. This allows the parents to work out a reasonable visitation plan at their discretion so long as the plan is in the best interest of the children. Negotiating child visitation rights can be done independently or with the help of a neutral third party mediator. A mediator can facilitate discussion of each parent's needs with the goal of reaching a mutually acceptable agreement without having to go to trial.

If an agreement cannot be reached by the parents, the court may intercede. When the court determines child visitation rights, it will develop a schedule that both parents and the child are bound to abide by.

Visitation Schedule

Child visitation can take a variety of forms or schedules. The term "reasonable visitation" leaves it up to the parents to specify dates and times for the visitation. Having a "scheduled visitation" agreement outlines a specific and fixed schedule of when the visitation will occur.

Whether you are the custodial or non-custodial parent, a basic visitation schedule may include the following:

  • Alternate weekend visitation with the non-custodial parent, including any three-day holidays
  • Mid-week visitation with the non-custodial parent
  • Sharing of the child during periods of school breaks; winter, spring and summer
  • New Year's Eve, Easter, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas are the types of holidays spent with one parent one year, the other parent the following year
  • Mother's Day is spent with the mother and Father's Day with the father
  • Parents alternate the children's birthdays
  • Telephone and email contact by the parent who does not have physical custody
  • Exchange of a few days of visitation on occasion as schedules permit that are mutually agreed upon without the need for a modification of the court order
  • Emergency situations that may require the other parent to take temporary physical custody of the child

When creating a parenting plan and visitation schedule, you should define the schedule according to age and gender. Keep the child visitation schedule flexible, workable, and feasible. As children get older, they may want to spend more time with their friends or participate in after school activities.

Children are the real victims of the conflict between their parents. Therefore, it is critical for each parent to show respect for each other and behave as adults in front of their children. Cooperation and a positive attitude will go a long way in making your children feel less stressed about their changing situation.

Grandparents' Visitation Rights

All 50 states currently have some type of grandparent visitation statute. However, there may be limitations under which grandparent visitation is considered. They may have to prove to the court that harm will occur to the grandchild in the absence of visitation. Establishing visitation for a grandparent can be emotionally difficult and legally challenging. Those who face parental resistance to their contact with their grandchildren might be best served through a mediation process. Grandparent visitation rights are not intended or designed to supersede parental authority. Their right to visitation is governed by the state where the child resides.

What Happens if One of the Parents Attempts to Interfere with Visitation?

Interference by one parent in the relationship of a child with the other parent is never in the child's best interest. Most courts and experts agree that it is important for a child to have a strong relationship with both parents. The courts will typically award custody to the parent who is most likely to foster a relationship between the child and the other parent. Courts in some jurisdictions have held that interference with the non-custodial parent's right could be grounds for a change of custody.

Refusing to Return Children

The most common form of interference occurs when the custodial parent consistently refuses to turn children over to the non-custodial parent for court-ordered visitation. The child's best interests are clearly injured as they are deprived of a relationship with the non-custodial parent.

Supervised Visitation

Visitation rights are not guaranteed. Visitation can be suspended, denied or restricted if the court finds that it would be contrary to the child's best interest. Factors may include parental unfitness such as child abuse, neglect or abandonment, or severe mental illness. The question of the need for supervised visitation generally comes up in the following situations:

Violence or Physical Child Endangerment

A parent may be denied visitation if the parent has abused the child or has threatened physical violence to the child or the custodial parent.

Emotional Harm

If there is proof of potential emotional harm to the child, a parent's rights may be limited or denied altogether. Such evidence may include stuttering, bed wetting, unusual behavior, or poor school performance.

Substance Abuse

A parent who abuses drugs or alcohol may be denied visitation only if the conduct endangers the child's welfare such as mistreating the child.

Mental Illness

A parent's mental incapacity does not automatically deprive the parent of visitation rights. They may be curtailed only if the court determines that there is a potential of harm to child due to the parent's condition.

Sexual Behavior

Courts today are less likely to enforce visitation restrictions on the basis of non-marital heterosexual relationships. However, some jurisdictions have considered the following behaviors to have a harmful effect on the child:

  • Gay or lesbian relationship
  • Allowing the non-custodial parent's partner to stay overnight
  • Exercising visitation rights in a home shared by the non-custodial parent and their partner

Parent Incarceration

A parent's incarceration is not sufficient to deny visitation. Their rights may be suspended where visits may be damaging to the child.

Child Abduction

If a parent has threatened to kidnap a child or there is proof showing a strong probability of abduction, this may limit their visitation.

Supervised visitation may be ordered temporarily to help reintroduce a parent and a child after a long absence or when there has not been an existing relationship between the parent and child.

Time and Duration of Supervised Visits

The court order will specify the time and duration of the supervised visits. It may also specify who the supervised visitation provider is to be and where the visits are to take place. Upon arrival, the non-custodial parent is placed in a room with a counselor, or another trained person. The parent is allowed to visit, play, and socialize with the child during the allotted time. The counselor will listen and watch for any behavior that may cause problems. In the event that a problem arises, the visit will be ended. Some programs charge a fee for the exchange. This fee may be set by the agency that provides the supervised visitation service.

The visitation rights of the non-custodial parent will only be denied if there is substantial evidence that such visitation will be harmful to the child or where the non-custodial parent has forfeited his or her right to visitation.

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