Child’s Preference in a Visitation Order

In the context of a divorce or legal separation, visitation rights allow the non-custodial parent to spend time with their child.

Visitation orders outline these rights and responsibilities and are issued by a judge during divorce or legal separation hearings.

These orders generally contain information about:

1. Each parent’s visitation rights;
2. Each parent’s duties and responsibilities to their child;
3. The child’s primary residence;
4. A detailed visitation schedule specifying when the non-custodial parent may see the child, how holidays are to be managed, and other relevant details (e.g., a father may have visitation rights every other weekend and on alternating holidays);
5. Allowable activities during visitation periods (e.g., taking the child to a movie or park);
6. Geographic restrictions (e.g., the non-custodial parent may not travel outside a certain radius with the child);
7. Modification restrictions.

Who Can Create a Child Visitation Schedule?

State laws vary concerning who may create a child visitation schedule. It is not uncommon for the parent with sole custody of the child to create the visitation schedule and then submit it to the court for approval.

If both parties can agree on child visitation terms, they may submit their agreement to the judge for approval. However, due to the high-tension nature of divorce proceedings and child custody arrangements, child visitation guidelines are often left to the court to decide.

What Happens After a Visitation Order Is Issued?

Once a judge has issued visitation orders, they are legally binding and enforceable under state laws.

Although specific visitation guidelines vary from state to state, violating a visitation order will generally result in legal penalties or even loss of visitation rights.

Visitation orders can be modified at a later date if they no longer suit the needs of the parties or children involved, but these modifications are subject to the court’s approval.

Do Courts Consider the Child’s Preference When Issuing a Visitation Order?

Before anything else, the court will prioritize the child’s best interests. This standard is used to determine who gets custody and visitation rights and on what terms, according to what best suits the child’s needs. Any decisions regarding visitation awards must serve the child’s best interest, not the parents.

Some factors that a court will consider when issuing a visitation order include:

1. The Child’s Background: This could include their age, sex, gender, and personal health characteristics. Children with special needs may need to stay in one home as opposed to the other;
2. Environmental Factors: Examples of this include the quality of education provided by each parent’s school district, the safety of each parent’s neighborhood, and each parent’s proximity to the child’s extracurricular activities. Courts generally prefer to maintain established patterns for a child unless there is a compelling reason to change schools or neighborhoods;
3. Parental Ability: This includes each parent’s physical and mental health and their ability to provide emotional and financial support for the child while the child is in their care;
4. Parental Stability: Examples of this include the stability of each parent’s lifestyle and background; and
5. History of Parental Behavior: The court will also consider each parent’s history of behavior, including any history of abuse, neglect, or substance abuse. A parent with a history of negative behaviors may be less likely to be granted significant visitation rights;
6. Parental Willingness to Cooperate: The court may consider the willingness of each parent to cooperate with the other in making decisions for the child and fostering a healthy co-parenting relationship. A parent who consistently demonstrates an unwillingness to work with the other parent may be less likely to be granted favorable visitation terms;
7. Child’s Adjustment to Current Circumstances: The court will consider how well the child has adjusted to their current living situation, including their home, school, and community. A child who is thriving in their current environment may be less likely to have their visitation schedule significantly altered;
8. Parental Involvement: The court will take into account each parent’s level of involvement in the child’s life, including attendance at school events, parent-teacher conferences, and other important activities. A parent who has been consistently involved in the child’s life is more likely to be granted favorable visitation rights;
9. Distance Between Parents’ Homes: The geographic distance between the parents’ homes may impact the feasibility of certain visitation schedules. If the parents live far apart, the court may need to consider alternative visitation arrangements to minimize the disruption to the child’s life;
10. Siblings and Other Family Members: The court will consider the impact of the visitation schedule on the child’s relationships with siblings and other family members, especially if those individuals play a significant role in the child’s life.

Is the Child’s Preference Ever Considered?

In some cases, if the child is old enough to express a preference, the child’s preference may be considered when determining visitation rights.

For instance, if the child prefers that the non-custodial parent visit more frequently, the judge may consider this preference when creating or approving the visitation schedule.

Factors that could be used to determine whether the child’s preference may be included in a visitation order include:

1. The child’s age and maturity level: Generally, a child must be at least twelve to fourteen years old to be considered mature enough to express a preference;
2. The child’s own stated reason for the preference;
3. The fitness of the party seeking visitation rights; and
4. Whether the child holds any hostility or fear towards the party seeking visitation rights.

In general, the older and more mature the child is, the more likely it is that the court will consider their preferences when awarding visitation rights.

Can a Court Disregard a Child’s Preference in a Visitation Order?

A child’s preference is no substitute for other determining factors. Simply because a child prefers one parent over the other does not take precedence over the court’s consideration of other relevant factors.

A court will generally disregard the child’s preference if that preference does not actually serve the child’s best interests. An example of this would be a child being emotionally attached to a parent who has abused the child in the past. Judges will also commonly disregard a child’s preferences in order to protect the child’s safety, especially if there is a direct risk of abuse or neglect.

Courts may also disregard the child’s preference if the visitation schedule has already been modified several times. Frequent changes to the visitation schedule are viewed as disruptive to the child’s upbringing, and courts will instead prefer to maintain consistency to stabilize the child’s life.

Can I Increase My Visitation Time?

Courts are typically reluctant to increase a parent’s visitation time if doing so results in a shared custody agreement. If the visitation is increased to such a degree that both parents share equal time with the child, this could result in a modification of custody as opposed to a simple modification of visitation.

Do I Need an Attorney to Help With My Visitation Orders?

Matters concerning child custody and visitation are particularly sensitive and sometimes complex. If you have questions about your child’s preference in a visitation order, you should speak with a child visitation lawyer.

It is highly recommended that you consult with such an attorney well in advance before any hearings, so you can discuss your best legal options.

An attorney can also represent you in a court of law, providing valuable guidance and support throughout the process.

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