In a divorce setting, visitation rights are granted to the non custodial parent so they may spend time with their child. Visitation orders are issued by a judge and are usually issued in connection with a divorce or legal separation hearing. Such orders generally contain:

  • Each parent’s visitation rights;
  • Each parent’s duties and responsibilities to their child;
  • The child’s main residence;
  • A detailed visitation schedule, such as when the non custodial parent may see the child and how holidays are to be handled;
  • Allowable activities;
  • Geographic restrictions; and
  • Modification restrictions.

State laws vary regarding who may create a child visitation schedule. It is not uncommon for the parent who has sole custody of the child to create the visitation schedule, then submit that schedule to the court for approval. If both parties are able to come to an agreement on child visitation terms, they may then submit it to the judge for approval. However, due to the high tension nature of divorce proceedings and child custody arrangements, child visitation guidelines are generally left to the court to decide.

Once visitation orders have been issued by a judge, they are legally binding and enforceable under state laws. Although specific visitation guidelines vary from state to state, violating a visitation order will generally result in legal penalties, or even loss of visitation rights. Visitation orders can be modified at a later date if they no longer suit the needs of the parties or children involved. Once again, these modifications are subject to the court’s approval.

Do Courts Consider the Child’s Preference When Issuing a Visitation Order?

Before anything else, the court will take the child’s best interests into consideration. This standard is used to determine who gets custody and visitation rights, and on what terms, according to what best suits the needs of the child. Any decisions regarding visitation awards must serve the best interests of the child, and not the parents.

Some of the factors that a court will consider when issuing a visitation order include:

  • The Child’s Background: This could include their age, sex and gender, and personal health characteristics. Children with special needs may need to stay in one home as opposed to the other;
  • Environmental Factors: Examples of this include the quality of education provided by each parent’s school district, the safety of each parent’s neighborhood, and each parent’s proximity to the child’s extracurricular activities. Courts are generally more inclined to continue previously established patterns for a child, barring some important reason for changing schools or neighborhoods;
  • Parental Ability: This includes each parent’s physical and mental health, and their ability to provide emotional and financial support for the child while the child is in their care;
  • Parental Stability: Examples of this include the stability of each parent’s lifestyle and background; and
  • Other Factors: This includes the existence and level of attachment to siblings or other important family members in the home. This may also include each parent’s commitment to facilitating an ongoing and healthy relationship with their other parent.

In some circumstances, if the child is old enough to express a preference, the child’s preference may be considered when determining visitation rights. An example of this would be if the child prefers that the non custodial parent visit more frequently. In such cases, the judge may consider this preference when creating or approving the visitation schedule. 

Some of the factors that could be used to consider whether the child’s preference may be included in a visitation order include:

  • The child’s age and maturity level. Typically, the age that a child is considered old enough to express a preference is generally at least twelve to fourteen years old;
  • The child’s own stated reason for the preference;
  • The fitness of the party seeking visitation rights; or
  • Whether the child holds any hostility or fear towards the party seeking visitation rights.

In general, the older and more mature the child is, the more likely it is that the court will consider their preferences when awarding visitation rights.

Can a Court Disregard a Child’s Preference In a Visitation Order?

A child’s preference is no substitute for other determining factors. Simply because a child prefers one parent over the other does not take precedence over the court’s consideration of other relevant factors. A court will generally disregard the child’s preference if that preference does not actually serve the child’s best interests. An example of this would be a child being emotionally attached to a parent who has abused the child in the past. Judges will commonly disregard a child’s preferences in order to protect the child’s safety, especially if there is a direct risk of abuse or neglect.

Additionally, courts are typically reluctant to increase a parent’s visitation time if doing so results in a shared custody agreement. Thus, if the visitation is increased to such a degree that both parents share equal time with the child, this could result in a modification of custody as opposed to a simple modification of visitation. 

Courts may also disregard the child’s preference if the visitation schedule has already been modified several times. Frequent changes to the visitation schedule are viewed as disruptive to the child’s upbringing, and courts will instead prefer to maintain consistency in order to stabilize the child’s life.

Do I Need an Attorney to Help with my Visitation Orders?

Matters concerning child custody and visitation are particularly sensitive and sometimes complex. If you have questions regarding your child’s preference in a visitation order, you should consult with a skilled and knowledgeable family law attorney

It is highly recommended that you consult with such an attorney well in advance prior to any hearings, so you can discuss your best legal options. Finally, an attorney can represent you in a court of law.