Visitation
Where one parent has been appointed sole managing conservator or primary custodian, the other parent is allowed to visit with the child on a regular and periodic basis. However, it is not the parent that has the right to visitation; it is the child. It is presumed that allowing a child access to both parents is always in his or her best interest. Therefore, prohibiting or decreasing visitation requires a finding that the child's best interests are no longer being served under the current visitation schedule.
With regard to visitation, the judge can decide:
- the place of visitation;
- the time of the visit;
- the duration of the visit;
- the frequency of the visit;
- the persons permitted to visit; and
- prohibitions during the visit.
Standard visitation rights
Because divorce and child custody issues are so common, most states have enacted laws that set out a standard visitation schedule. Unless the circumstances warrant a change, the judge will enter a standard custody order that sets out the visitation schedule to which the parents must adhere.
Can visitation between a parent and child be completely denied?
Yes. If visitation with a parent will endanger the child, physically or emotionally, the court can prohibit visitation entirely. However, the court must find that the facts contributing to the adverse impact on the child are an extraordinary circumstance
TIP: If at all possible, before denying visitation the court has a duty to attempt other means of visitation, such as supervised visits.
As a result of my re-marriage, my son now has a half-brother. Is that a consideration in setting up a visitation schedule?
Yes. Courts favor visitation that fosters a relationship between siblings.
My ex-husband chose to work in a different state. Will he get longer visitation with the children as a result of his living far away?
Yes. The court takes geographic proximity of the children and a parent into consideration. Since visits are necessarily less frequent due to the distance involved, the court has the discretion to order longer visitation time periods. For instance, the children's visit during summer vacation may be extended from 2 weeks to 6 weeks, since their father is unable to see them much during the school year.
My ex-wife lives 8 hours away and she wants me to drive the children to her home every weekend. Will the court approve that visitation schedule?
No. If the court orders weekend visits, the schedule might be modified to require the two of you to meet halfway. Alternatively, the court may order visits every other weekend, or require your ex-wife to pay for your gas. The judge will do whatever is in the best interests of the children.
EXAMPLE: It is not in the best interests of the children to require them to visit with their father who lives 2 hours away every Wednesday after school. The visits will have a negative impact on their schoolwork.
My ex-husband refuses to make support payments on time. Shouldn't his visitation with the children be curtailed?
No. The court cannot use visitation as a "stick" to punish a parent. Visitation is a benefit to the child, not the parent, and it will only be curtailed if it is in the best interests of the children.
SIDEBAR: The judge can and will decrease or terminate visitation when the parent's behavior becomes so outrageous that the physical, mental, economic and/or social well-being of a child is affected. For example, a wife who yells and argues with her ex-husband when he picks up the children after weekend visits with their mother, locks the door and attempts to block him from entering the house and taking the children, is acting in outrageous manner.
My ex-husband's girlfriend lives with him. Should the children get to stay at his house overnight?
Yes. The court cannot base a visitation decision on the fact that your ex-husband's girlfriend is in the house. However, if her presence (and the resulting sexual relationship with your ex-husband) affects the children's emotional well-being, overnight visits may be prohibited. Additionally, the court is within its rights to limit visitation if it finds that the children are too young, and it is not in their best interests to be exposed to their father's sexual relationship with his girlfriend.
SIDEBAR: A parent's illegal drug use always has an adverse impact on the visiting child.
Can the court order visitation between my daughter and her mother, who is in prison?
Yes. Incarceration alone does not warrant denying visitation entirely. It's presumed that it is in your daughter's best interest to see her mother.
SIDEBAR: Parents convicted of a felony relating to sexual abuse or assault can be denied visitation because the crime constitutes an extraordinary circumstance.
My 11-year-old son wants longer visitation periods with his father. Is his preference going to mean the court will change the visitation schedule?
No. The court may consider your son's wishes; but children typically do not base their preferences on what is in their best interests. By itself, your son's preference is not enough to change the visitation schedule. By the same token, the child who prefers not to visit a parent will not be allowed to "skip" visitation.