Visitation Rights and De Facto Acting Parents
What is a “De Facto” Parent?
In situations where a child has been left with only one or no parents, an adult may step in to assume the parenting role for the child. The role model is called a “de facto” or “acting” parent, and is typically assigned by the court.
In most cases, the de facto parent receives physical and legal custody of the child or children involved. However, it is also common for de facto parents to receive split custody of a child. In this type of arrangement, the de facto parent may assume only part of the child-rearing responsibilities. They may also be granted visitation rights similar to those awarded in a divorce setting.
Who Can Be a De Facto Parent?
Persons who take on the role of a de facto parent may usually include grandparents, close relatives, or stepparents. In some cases, a non-relative may become a de facto parent if a close relative cannot be found to take care of the child.
De facto parenting usually results from the death, incapacity, or inability of the natural parents to care for the child. As in any guardianship or child custody arrangement, the court must follow the “child’s best interest” standard when assigning a de facto parent.
What Visitation Rights do De Facto Parents Have?
The extent of a de facto parent’s visitation rights will of course vary according to each individual parenting arrangement. As mentioned, de facto parenting arrangements are common where the biological parent(s) cannot fully care for the child, such as when the natural parent has a substance abuse issue.
In such cases, the de facto parent may have significant visitation rights, such as weekends or even cyclical rotations with the natural parent. Some of the main factors that a court considers when awarding visitation rights to a de facto parent can include:
- Whether visitation is in the child’s best interest
- Whether a blood relationship exists between the de facto parent and the child
- The amount of previous contact between the child and the de facto acting parent
- Whether visitation is practical and will contribute to the child’s adjustment and development
- Whether the visitation will interfere with the custodial parent’s upbringing of the child
Another factor that courts consider regarding visitation rights and de facto acting parents is the idea of “in loco parentis”. This term basically refers to situations where an adult has had such a close relationship with the child that the child treats them as if they were their parent. A person acting in loco parentis may be granted visitation rights as well. This is common in family settings involving step-parents or foster parents.
Can Visitation Orders be Contested?
In general, visitation orders issued by a judge are binding and enforceable under law. However, in many cases a visitation order may be contested or altered by request. Some instances where a visitation order can be contested by a de facto parent may include:
- The custodial parents have violated the terms of a visitation order
- Circumstances have changed and the visitation order is no longer in the child’s best interest
- The current custody arrangement no longer benefits the child or may result in harm or danger to the child
- An error was made when the original visitation order was issued
- The custodial party engaged in fraud or falsified documents in relation to the original court custody order
Do I Need a Lawyer for Issues with Visitation Rights and De Facto Acting Parents?
Visitation schedules are treated very seriously as they have tremendous impacts on the upbringing of a child. It is in your best interest to contact a lawyer if you have questions about visitation rights and de facto acting parents. Your lawyer can help you determine your visitation rights as a de facto parent and can help negotiate for an ideal visitation schedule. Also, if the visitation order needs to be modified or contested, an experienced family lawyer can help present your interests to the court.
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Last Modified: 11-08-2011 04:27 PM PST
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