Child Visitation Rights Before Divorce

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 What are the Full Custody and Visitation Agreements?

In most cases, the family law judges give deference to both parents being involved in the child’s lives and will strive for the parents to have shared custody. Although this is the ideal goal, it may not be feasible for every type of arrangement.

Instead, at times, the judge will grant one parent primary physical custody of the children and grant the other parent visitation rights. The parent who has the children the majority of the time is known as the “custodial parent” and the other is known as the “non-custodial parent.”

Both joint custody agreements and primary custody agreements with visitation do offer flexibility. Regardless of the agreement that is awarded, the main goal is to allow each parent to spend quality one-on-one time with the children.

When joint custody is granted, the court will often assign the parents on deciding the schedule, encouraging them to take charge in account for their personal work schedules, distance between residents, the children’s schooling and activities and, above all, the children’s well-being.

Additionally, there is flexibility with sole-custody agreements or primary custody agreements. The judge will request the parents to set a visitation schedule that aligns for their personal schedules as well as the children’s schedules.

Some visitations with the non-custodial parent can include weekends, every other weekend, certain holidays and/or special events, and activities. The court will encourage the parents to collaborate and be flexible with these schedules in order to provide the children with equal time.

What are the Fixed Visitation Agreements?

In some cases, having the judge outline the agreement assists the parents to work together to create their own schedule – this is the preferred outcome for the family court system. But, in some cases, the parents still cannot come to a consensus on when they should receive time with the children.

At this point, the court will pass a judgment for a fixed visitation plan. A fixed visitation plan is when the parents must follow a specific schedule of when the parent has the children and at what time without any flexibility.

In some cases, if one of the parents may be considered incompetent to care for the children or may be considered a threat or danger to the children’s welfare, the court still allows for that parent to visit with their children.

However, those visits will need to be supervised by a third party. This individual may likely be a counselor, a therapist, or a child services employee. These types of visits permit the parent to spend time with the children without placing the children’s well-being in jeopardy.

What are the Considerations for Child Custody and Visitations orders?

The court can decide on the custody arrangement for the children and what the visitation schedule will be. They will take a number of factors into consideration:

  • Testimony of the involved parties;
  • Testimony of the children;
  • Parent serving as primary custodian to date;
  • Criminal backgrounds of both parents;
  • Testimony from therapists, counselors or child services individuals involved and;
  • Example of child visitation time.

In a typical child custody case, where the parents cannot come up with their own parenting plan, the judge will usually grant the mother primary custody of the children and allow the father visitation rights.

Most states follow the same model for awarding the father visitation time; for example the father should be allowed 20 percent of the total parenting time. This time can be scheduled in a different way, based on what works for both parents as well as the children’s schooling and other activities.

How Can You Modify a Visitation Agreement?

A visitation agreement can be modified. Keep in mind that those couples who created their own parenting plan independent of the court do not have to have small changes approved by the family court judge. But, for those couples who have had their visitation agreement created by a family court, any changes to the agreement will need to be presented to and be approved by the judge before they take place.

Here are scenarios where a modification may be granted:

  • When one parent’s work schedule changes;
  • If one parent moves;
  • If one parent is not cooperating with the child visitation agreement;
  • Either not allowing the visits to occur and;
  • Not attending the visits.

In a divorce or child custody cases, a third party individual or individuals will seek custody of the children in question. This is generally only considered when the third party has had custody of the children to date or both parents are found to be unfit to care for them. While it is possible for third parties to have custody granted, some states have what is called a “parental rights doctrine.”

The doctrine means that if one or both of the biological parents wish to have custody of their children, their rights are dominant and taken into more serious considerations than those third party members seeking custody.

Moreover, maintaining a consistent schedule is important for children’s mental and emotional well-being. Some couples may take assistance from a child visitation lawyer to determine a proper schedule. These legal professionals can help one or both parents establish a visitation schedule that is fair and preserves the rights of both the custodial and non-custodial parent.

What are Parental Rights and Responsibilities?

As far as the courts are concerned, an agreement between parents concerning their custodial rights and responsibilities is recommended. And courts can offer assistance in that regard. For instance, state divorce laws may require that parents attend court-sponsored classes, in which they are informed about the impact of divorce on children.

Additionally, if the parents are having problems reaching an agreement, the court may assign them to personally attend child custody mediation sessions, in which trained court personnel attempt to help them resolve any other issues.

However, as mentioned previously, if the parents cannot reach an agreement for some reason, then the courts will have to intervene. When deciding custody and parenting time issues, judges are guided by one main principle, which is to follow what is in the best interest of the child.

Generally, the court will appoint an attorney or a “guardian ad litem” to represent the child in a custody dispute. In granting custody, courts take several things into consideration. New Jersey judges, for instance, examine the following factors:

  • The parents’ ability to agree, communicate, and cooperate in child-related matters;
  • The child’s interaction with the parents and any siblings;
  • The child’s safety and the safety of either parent from physical abuse by the other parent;
  • The child’s preference when the child is of sufficient age and capacity to make an intelligent decision;
  • The child’s needs, including the quality and continuity of the child’s education;
  • The parents’ fitness and the stability of the home environment offered;
  • The geographical proximity of the parents’ homes;
  • The extent and quality of the time the parents spent with the child before or after the separation, and;
  • The parents’ employment responsibilities.

It is important to look up your local state guidelines regarding the factors for the best interests of the child.

When Do I Need to Contact a Lawyer?

If you are a parent and are considering filing for a divorce, it may be useful to research local visitation laws for your state. If you need further assistance for your specific case, it may be helpful to reach out to an experienced child visitation attorney to discuss these issues.


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