Custody and Visitation Rights

Part of the divorce decree declares which spouse the children will with and the circumstances under which the other parent can visit them. While the details of this are often worked out before the divorce (with or without an attorney or mediator), in the event that an agreement cannot be reached, the court will make a decision, based on the best interests of the child or children.

There are two primary types of custody, physical and legal. Physical custody is awarded to the parent with whom the child will live most of the time. Often, the custodial parent shares “legal custody” of the child with the non-custodial parent. “Legal custody” is the right to make decisions about the child’s education, religion, health care, and other important concerns.

Child Visitation Rights

Any parent with reasonable requests, and in good standing with both child and ex-spouse should have no difficulties exercising their child visitation rights. Ordinarily, the spouse who does not have physical custody of the child has the legal right to child visitation. However, these rights can be withheld if evidence can be provided proving that it is in the best interest of the child not to see the spouse. Excessive uses of alcohol, physical, or verbal abusiveness are a few examples of reasons to lose child visitation rights. The amount and schedule of visitation are stated in the final agreement.

When one parent is awarded custody of the child, the other parent is granted child visitation rights. Visitation plays a role in almost all custody arrangements unless deemed not in “a child’s best interest.” It is important for the child to maintain a relationship with both parents, but only if it is a healthy one.

Visitation Guidelines

Visitation guidelines should be agreed upon promptly to prevent any future misunderstandings. Both parents are responsible for arranging a reasonable schedule of visitation. Failure to do so in a timely manner or not heeding child visitation rights will force the court to assume complete control of the situation. Both parents should approach this discussion openly, in order to thoroughly address the issues of child visitation, which are when, where, and for how long visitation will take place.

Child visitation rights are just as essential as parent visitation rights. It is typically important to always bear in mind that the child has a right to maintain an ongoing relationship with both parents. Once arrangements have been made, they should not be deliberately interfered with or ignored.

The custodial parent has the responsibility to prepare the child for the first visitation. The visits are normally non-supervised and occur at the non-custodial parent’s residence. Visitation patterns that evolve throughout and after the final divorce typically reflect the pre-divorce relationship. However, the temporary visitation arrangements made prior to the final divorce are not always the guidelines followed after the divorce.

Visitation Arrangements

Visitation arrangements should be both liberal and generous in order to comply with child visitation rights. It’s the parents’ job to establish reasonable visitation. It is almost impossible to have prior knowledge concerning the times and terms that will work best for both parents and child. Therefore, it is essential that both parents cooperate and remain flexible.

In some situations, one parent may use visitation as a tool to spite the other parent. Even the tiniest detail, such as transportation, can be utilized as a manipulative weapon. Unfortunately, the one affected the most, in the end, is the child.

Visitation Schedule

As long as the judge believes genuine cooperation exists between the two parents, and no child visitation rights will be violated, a detailed visitation schedule may not be formally drafted. However, it is in everyone’s best interests to prepare as detailed a schedule as possible, because it is impossible to predict what complications the future may bring. An experienced attorney can provide you with help in addressing your potential concerns or any other complications with child visitation rights.

Joint Custody

Some parents settle on a joint-custody arrangement, by which the child spends approximately an equal amount of time with both parents. Some argue that this decreases the feeling of loss that a child may experience due to a divorce, however, others argue that it is in the best interests of a child to have one home, coupled with liberal visitation allowed to the “non-custodial” parent. Joint custody requires a significant amount of cooperation between the parents, and consequently, courts are hesitant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child’s sake.

Split Custody

Another, less favorable option, is split custody, in which the children are divided between parents. Courts do not like to separate children when awarding custody.

In the event that parents are not married, most states require that the mother be awarded sole physical custody unless the father actively seeks it. It is difficult for an unwed father to be awarded custody if the mother is a good parent, though he will take precedence over other relatives, foster parents, or prospective adoptive parents.

Factors in Custody Decisions

The best interest of the child is at the heart of the court’s decision when awarding custody, though this is often heavily influenced by the parent who has been the primary caretaker of the child. Other factors include:

  • The wishes of the child (if old enough to capably express a reasonable preference)
  • Mental and physical health of the parents
  • Religion and/or cultural factors
  • Need for a continuation of a stable home environment
  • Support and opportunity for interaction with members of the extended family of either parent
  • Interaction and interrelationship with other members of the household
  • Adjustment to school and community
  • Age and sex of the child
  • Parental use of excessive discipline or emotional abuse
  • Evidence of parental drug, alcohol, or sex abuse

Factors determining who is the “primary caretaker include the parent who has responsibility for:

  • Bathing, grooming, and dressing
  • Planning and preparing meals
  • Buying clothes and doing laundry
  • Health care arrangements
  • Encouraging participation in extracurricular activities
  • The teaching of reading, writing, and math skills.

What is Reasonable Visitation for Non-Custodial Parent?

Usually, when a court establishes visitation rights for a noncustodial parent, it orders “reasonable” visitation. This leaves it to the parents to come up with a schedule of times and places. The idea is to give the parents some flexibility with regard to their schedules and the children’s schedules. However, the parent with physical custody has more practical control over the dates, times, and duration of visits. There is no legal obligation to agree to any particular schedule; however, judges do notice of who is and who is not flexible. Being uncooperative can backfire when you need to ask the court for something in the future.

In order for the reasonable visitation approach to succeed, parents must cooperate and communicate frequently. Consequently, if you think that reasonable visitation will not work, it would be prudent to insist upon a fixed schedule and thereby save yourself time, frustration, and probably money. If you have agreed to reasonable visitation that is not working out, you can go back to court and request that the arrangement is altered. Fixed visitation is when the courts establish a detailed visitation schedule, this includes the times and places for visitation with the noncustodial parent. This usually results because of antagonism between parents. This can be generous, but it does remove flexibility.

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