Visitation Against Mother's Wishes

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How Would a Court Decide That Vistation Should Be Granted Against the Mother’s Wishes?

When the parents of a child are married, courts will almost always assume that both parents have an unlimited right of access to their children. Married parents will only be prevented from seeing the child if there is significant risk of abuse, or some other strong reason why the parent should not see the child.

When the parents divorce, they can agree to a custody and visitation scheme, which will usually be approved by a court. However, if they cannot come to an agreement, the court will try to determine what is in the best interests of the child, and will structure a visitation and custody scheme around that determination.

At this point, the wishes of either parent do not appear to carry as much weight as the interests of the child. If the unmarried father of a child can successfully persuade a court that additional visitation would be in the child’s best interests, the court will grant it, usually over the mother’s objections. The father’s rights to visit the child are recognized, but are weighed against the interests of the child.

Could the Visitation Be Changed?

Once the court has created a visitation scheme, it is not likely to change it without a change in circumstances. For example, if the mother gets a new job, and cannot spend as much time with the child as before, a court might find that it is now in the child’s best interests to spend more time with the father, even against the mother’s wishes.

What If Grandparents Want Vistation Rights Over the Objections of the Mother?

This is largely a question of what state you’re in. About half of the states in the country stay with the “best interests of the child” standard. The other half have slowly established the concept of “grandparents’ rights,” an approach which balances the rights of grandparents to know their grandchildren against the rights of the parents who should have the ability to decide what is best for their own child.

In general though, most courts will carve out some amount of visitation time for the grandparents if the mother cannot show that the grandparents are abusive or dangerous to the children in some way.

What If a Formerly Legal Female Partner Wants Vistation against the Mother’s Wishes?

Same-sex partnerships, including civil unions, domestic partnerships, and marriages, have produced many jurisdiction splits; the answer will largely depend on what state you reside in.
In states that do not recognize any form of same-sex unions, former same-sex partners of the mother have as much legal standing as one of the mother’s girl friends: very little.  

On the other end of the spectrum, states which recognize same-sex marriage will likely grant visitation to the former spouse. Indeed, the Vermont Supreme Court ruled that a former same-sex spouse could be a child’s actual parent despite having no biological relationship. Based on this precedent, states which also recognize same-sex marriages would likely follow Vermont’s example.

In the middle are states which grant civil unions and domestic partnerships, but not same-sex marriage. Civil unions include most marriage rights, so civil union states should be able to incorporate child visitation into separation proceedings for same-sex couples. Domestic partnerships would largely come down to what rights are granted by the states which employ domestic partnerships; the rights of domestic partners can vary widely from state to state.

In general though, same-sex partners of the mother who wish to have visitation rights should do as much as possible to convince a court to rule for visitation. These means acting like a parent; feed the child, play with the child, make doctor appointments, assist with homework, and anything else which might help raise the child. Adoption would also establish a legal status which could strengthen the claim to parental status despite having no biological relationship with the child. 

Do I Need a Family Lawyer?

Child custody cases are often very stressful for all parties. Regardless of whether the case goes to trial or through negotiations, an experienced family law attorney can help you establish the visitation schedule you and your child needs.

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Last Modified: 12-05-2012 11:54 AM PST

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