Child visitation rights are rights that are granted to the noncustodial parent in situations that involve divorce and child custody. These rights are detailed in a child visitation agreement or child visitation schedule, and are finalized in the judge’s divorce decree. When determining child visitation and custody rights, courts will always consider the child’s best interests first and foremost. The child’s best interest standard considers:

  • The child’s background, including their sex, age, personal health characteristics, special needs or disabilities, etc.;
  • The child’s preference, if they are of a certain age. It is important to note, the child’s preference may not serve as a substitute for other factors;
  • Environmental factors, such as the quality of each parent’s school district, the safety of each parent’s neighborhood, proximity to relatives and extracurricular activities, etc.;
  • The physical and mental health of each parent, as well as their ability to provide emotional and financial support for their child;
  • The stability of each parent’s lifestyle and background; and
  • Each parent’s commitment to providing an ongoing, healthy relationship with the child as well as the other parent.

Although courts generally prefer that both parents have an active role in the child’s life, if there are past issues such as abuse or domestic violence, they may require supervised visits. Rarely, in more serious cases, a judge may rule that no visitation rights be granted to that parent at all.

As previously mentioned, child visitation rights are typically determined over the course of divorce proceedings, and are finalized in the judge’s divorce decree. However, custody disputes may also be resolved even before a divorce is finalized.

How Are Custody and Visitation Arrangements Determined Before a Divorce is Finalized?

There are three main ways child custody and visitation may be handled before a divorce is finalized. These are:

  • Maintaining the Status Quo: This occurs when spouses are able to live amicably in the same house during the divorce. This is ideal for the child since there is little disruption to their day to day life, and both of their parents remain in the home. Maintaining the status quo also eliminates any custody disputes and no one needs to make custody decisions until the divorce is finalized;
  • De Facto Custody: If one parent moves out of the home without a court order, the remaining parent is given de facto custody of their child. Simply put, the court allows the other parent to have full custody of their child. De facto custody can cause difficulties later on. 
    • When the judge considers the child’s best interests while making their decision, they may maintain the de facto custody arrangement and argue that the child will best benefit from consistency in parenting. Further, it could be difficult to later argue that your former spouse is an unfit parent if you previously voluntarily gave them full custody; and
  • Temporary Custody Orders: You or your spouse may file for temporary custody orders if the two of you cannot agree to a voluntary custody arrangement. The judge’s custody and parenting order will be enforced until the divorce is finalized and a permanent arrangement has been made. 
    • Once the divorce petition has been filed, a motion for temporary custody orders may be filed as well. Next, the non-filing spouse will receive a copy of the motion, and a hearing will be scheduled. At the hearing both spouses will testify about custody and parenting issues. Depending on the complexity of the situation, the judge may make an immediate decision regarding custody rights.

If possible, you should strive to negotiate a shared parenting agreement with your spouse. This agreement should be put in writing, which could be as informal as a series of text messages or emails. No matter what medium is used, it is important that the parenting arrangement is clearly stated in these communications. Doing so could avoid a de facto custody situation, or the need for temporary custody orders.

What Custody and Visitation Mistakes Should I Avoid?

It is important that you are especially careful when children and custody issues are involved, as your decisions can impact your parental rights later on. You want to avoid giving the judge any reason to question your parenting abilities, because they must consider the child’s best interests when determining child custody and visitation rights. Reckless and impulsive behavior could cause the judge to question your judgement and parenting abilities. Avoid these actions, as well as altercations with your spouse and illegal activities as they may damage your credibility.

Judges tend to follow de facto custody agreements, believing that consistency is in the child’s best interest.Therefore, if you want custody of your child, you should avoid giving your spouse de facto custody. Additionally, avoid moving out of the home, because this may result in your spouse receiving full custody. In such cases, it is best to file a motion for a temporary custody order.

The above also applies to moving out with your child. You should not move out with your child unless there is a temporary custody order in place. This is because such actions may result in criminal kidnapping charges being filed against you. The exception to this rule is if you are a victim of domestic violence. In such cases, you can and should leave with your children while consulting with an attorney regarding your next best course of legal action.

Do I Need an Attorney for Help with Child Visitation Rights?

Navigating child visitation rights before divorce can be complicated. It is important that you act carefully so as to avoid damaging your credibility or even breaking the law. 

Therefore, consulting with a well qualified and knowledgeable child visitation attorney may be beneficial in helping you both understand your state’s specific laws and determine your best course of legal action. Additionally, the attorney will represent you in court as needed.