Child's Preference in a Visitation Order

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What are Visitation Orders?

Visitation orders are issued by a judge, usually in connection with a divorce or legal separation hearing.  A visitation order contains instructions and guidelines as to the visitation rights of the parents of a child or children.  The order will usually contain a schedule of when a parent (the non-custodial parent) may visit the child.

Visitation orders issued by a judge are binding and enforceable under state laws.  While state visitation guidelines may vary, violations of a visitation order generally lead to legal penalties or a loss of visitation rights.  Visitation orders can usually be modified at a later date, subject to the judge’s approval.  This is common if circumstances change and the parents need to adjust the visitation schedule. 

Do Courts Consider a Child’s Preference in a Visitation Order?

In any court hearing regarding child custody and visitation, the courts must use the “child’s best interest” standard.  That is, any decisions regarding visitation awards must serve the best interest of the child and not those of the parents.

In some circumstances, the child’s preference may be considered when awarding visitation rights.  For instance, if the child prefers that a non-custodial parent visit more frequently, the judge may consider this when approving a visitation schedule.

Some factors that are used to consider whether a child’s preference may be included in a visitation are:

Usually, the older and more mature the child is, the more likely it is that the court will consider their preference when awarding visitation. Very young children usually are not allowed to make such legal decisions. 

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

Yes- a court can disregard a child’s preference in a visitation order if the preferences do not actually serve in the child’s best interest.  For example, a child may be emotionally attached to a parent, but the court may disallow visitation if the parent has abused the child in the past.  It is common for a judge to even disregard a child’s wishes in order to protect their safety, especially if there is a direct risk of abuse or neglect.  Even if the child objects, the law requires courts to make determinations in the child’s best interest.

Also, courts are reluctant to increase a parent’s visitation time if doing so will result in a shared custody arrangement.  For example, if the visitation is increased such that both parents share an equal time with the child, this could result in a modification of custody, rather than a simple modification of visitation. 

Finally, courts may disregard a child’s visitation preferences if the visitation schedule has already gone through many modifications.  This is because frequent changes to visitation schedules are seen as disruptive to the child’s upbringing.  Instead, courts prefer to maintain consistency in visitation awards in order to increase stability in the child’s life. 

Do I Need a Lawyer for issues with Child Visitation Orders?

Child custody and visitation hearings are very important, as they will determine a large part of the child’s future upbringing.  A child’s preference in a visitation order can often have dramatic effects on the visitation schedule.  If you have questions regarding a visitation order, you may wish to consult with a family lawyer for advice.  It is recommended that you contact a lawyer well before the hearings begin, so that you can receive guidance throughout the whole process.

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Last Modified: 11-09-2011 02:23 PM PST

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