Parental Visitation Rights FAQ
Child custody issues are never easy and visitation is often a primary concern of individuals going through a divorce. As an initial matter, it's important to know your state's child custody laws and find answers to common custody and visitation legal questions. Below you will find some of the most frequently asked questions regarding parental visitation rights after a separation or divorce.
The judge mentioned "reasonable visitation," what does that mean?
If the judge presiding over your separation or divorce determined that you or your ex-spouse was entitled to "reasonable visitation" without setting forth a visitation schedule, this generally means that it is left to the parents of the child (you and your ex-spouse) to come up with a plan of parental visitation time. When the parents are still able to cooperate, this is generally preferred over other means of determining visitation schedules because it allows the parents to work around their respective schedules.
In practice, however, the parent that has custodial rights will generally have more power and influence over what is considered "reasonable visitation" in terms of times and duration. Both the custodial and noncustodial parent have an obligation to act in good faith and negotiate reasonable visitation because of how important it is for the child's welfare to have as positive a relationship as possible with both parents.
In order for a reasonable visitation schedule to work, parents must be willing to communicate with each other in a sane, rational manner. If you know or think that you and your ex-spouse will not be able to cooperate in a reasonable visitation plan, you should tell the judge so and insist on a fixed visitation schedule instead. In addition, if you and your ex are currently under a reasonable visitation plan that is not working, you may go back to the court and ask for a different arrangement in terms of parental visitation rights. Keep in mind that "virtual visitation," such as video calling, is an option in some states.
The judge placed me on a "fixed visitation" schedule. What is that?
In general, a fixed visitation schedule is one where the judge orders times (and sometimes places) where the non-custodial parent is to have parental visitation. For example, a non-custodial parent could have visitation rights on Monday and Wednesday nights, or only on holiday weekends.
In addition, some courts are more inclined to issue fixed visitation schedules because it provides some stability that children can rely upon in a generally upsetting and confusing period of their lives.
My ex-spouse was often physically abusive to both me and our children. Despite this abuse, he/she still got visitation rights. How can I prevent abuse during child visitation time?
If your ex-spouse has a history of abuse, especially towards your child or children, you can point this out to the court when the court is deciding parental visitation rights. Generally speaking, if a court thinks that the non-custodial parent is likely to harm or abuse the child during his or her visitation time, the court will order that all visitation be supervised.
This means that any time the non-custodial parent spends with the child must be in the presence of another adult designated by the court to supervise visitation and prevent any abuse of the child. This other person could be someone agreed upon by the parents of the child, or sometimes it is a person that is appointed to the role by the court. However, all supervisors must be approved by the court before they can fill their roles.
Do my children's grandparents have a right to visitation?
Every state in the county has a law that allows some type of grandparent visitation. Through these laws, grandparents (and sometimes others, like foster parents or stepparents) can ask a court to grant them the right to continue their relationships with the child or children. However, each law is a little different in what a grandparent needs to show in order to get this legal right. In addition, courts will generally give great weight to a parent's decision to limit grandparent visitation.
Less than half the states in the union have restrictive statutes when it comes to grandparent visitation. In these states, it is sometimes only possible for a grandparent to get visitation rights in certain circumstances, like if one of the parents has died.
The remainder of the states generally have more permissive laws that allow the granting of grandparent visitation rights even if all the parents are alive. However, what is kept in mind in most situations is the well-being of the child.
What if a non-custodial parent fails to exercise his or her designated parenting time with the minor children?
Some custodial parents may seek to modify a visitation order based upon a non-custodial parent's failure to exercise defined parenting time. While this may be appropriate in certain circumstances, many attorneys argue it is not the best course of action. After all, reducing parenting time for failure to exercise that time may not be understood by children.
Often, when a non-custodial parent fails to exercise parenting time, the goal should be to bring that parent back into the child's life to ensure that both parents are as involved as possible with the lives of their children. The child may suffer the emotional stress or trauma of feeling unloved or unwanted.
That said, some states have broadly addressed this concern by statute. In Tennessee, for instance, a court may deviate upward from statutory guideline support due to a non-custodial parent's failure to exercise defined parenting time. Not all states have agreed with this concept, and some courts have held that a court cannot coerce a parent to become more involved by threatening a greater child support obligation.
How can I limit the visitation time the grandparents have with my children?
If you attempt to limit the visitation rights of your child's grandparents, they may just end up taking you to court to enforce their rights. If you have good reason that it is in the best interests of your child for you to deny the grandparents an aspect of visitation rights (perhaps they are abusive), you should feel comfortable going to court with credible evidence to enforce your wishes.
However, you should probably not go to court to deny grandparents visitation merely for your own pride or unreasonable reasons that are not in the child's best interests. If you do so, you will probably only end up wasting your time and money because the grandparents will probably receive visitation rights.
When you do go to court, it would be best to arrive with a planned out visitation schedule. By doing so, not only will you have a hand in determining the grandparent's visitation rights, but you will also probably look better in the eyes of the court.
In general, grandparents should be allowed visitation rights of a few afternoons a month, often for a couple of hours at a time. The length should be enough to allow a meal and an activity. If the grandparents are not normally around the children, you can ask the court to allow you or another court-approved party to observe and supervise the visits with the grandparents.
If you decide to go to court over grandparents visitation rights, it may be worth your time and money to hire a mediator to help you and the grandparents determine a visitation schedule that works for all parties.
I am a grandparent with visitation rights to my grandchildren, what should I do if the child's parent wants to limit my visitation?
In most situations where a child's parent is attempting to limit or restrict a grandparent's visitation rights, the best first step is to go to a mediator to discuss the problem. In fact, in some states, a court will not even hear a grandparent's argument before all parties go to a mediator to discuss the situation. You can often find mediators with experience in visitation problems by contacting your local or state bar association.
Unfortunately, mediation does not always work and you may end up in court fighting for visitation rights. If this is your situation, you should be prepared to present evidence showing your strong relationship with your grandchild and that denial of visitation with you will be harmful to your grandchild and contrary to the child's best interests
The judge may ask you questions about your medical history to determine your health and can also ask you if you have had any problems with the law before.
It is worthwhile to keep in mind that the ultimate question that the judge keeps asking him or herself is "what is in the best interests of the child." If you have bad habits, like smoking, be prepared to swear that you will not smoke around the child. In addition, if you have a disability that may put the child in danger, you should be prepared to show that you are willing to have supervised visits in order to keep the child safe.
Learn More About Parental Visitation Rights from an Attorney
As a parent, your child's best interests are always the most important factor. But if you've gone through a divorce or separation and want to understand your parental rights and get the legal right to see your child, you'll need to understand the laws of your state. The best way to understand your state's laws and ensure that you're protecting your visitation rights is to reach out to a local child custody lawyer today.
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