Child visitation rights are awarded to the noncustodial parent during divorce and child custody proceedings. These rights allow the noncustodial parent to spend time with their child, which is generally scheduled and unsupervised. The terms of visitation are detailed in a child visitation schedule, or child visitation agreement.
Courts always consider the child’s best interests when determining custody and visitation, but some other factors considered include:
- The age of the child;
- The overall wellbeing of the child; and
- Each parent’s daily work and life schedules.
In the past, it was generally assumed that it was always in the child’s best interest for the mother to be granted custody, and the father be awarded visitation rights. However, awarding the mother primary custody is not always in the best interest of the child. Thus, in the present time, it is unconstitutional for the court to assume that mothers make better full-time parents.
Mothers are still often awarded physical custody the majority of the time. Further, there is a negative public perception towards mothers who have been denied custody and are instead awarded visitation rights. This can make an already difficult process even more difficult.
Regardless of gender, typically all noncustodial parents are entitled to visitation rights. Unless there is some history of violence or abuse, it is typically in the child’s best interest to maintain a healthy relationship with both of their parents to some degree. If there are past issues such as abuse or domestic violence, the judge will take this into consideration and likely require supervised visitation. It is rare that judges deny a parent all visitation rights entirely.
All visitation rights are detailed and contained in a child visitation agreement. This agreement also details each parent’s duties and responsibilities to their child. A typical child visitation agreement may contain:
- Where the child shall primarily reside;
- A detailed visitation schedule, such as which days and holidays the noncustodial parent is allowed to visit the child;
- Allowed activities;
- Geographic restrictions; and
- Modification instructions, should there be a material change in the circumstances of either parent or the child.
Noncustodial parents typically receive the same visitation rights regardless of their gender. These specific rights include:
- The right to interact with their child during court ordered times;
- The right to schedule any allowed activities during these court ordered times;
- The right to be free from the other parent’s control, threats, and impositions;
- The right to notify the police of any denied visitation hours, as the first step in petitioning the court to make changes to the visitation agreement; and
- The right to receive an injunction to stop the other parent from taking their child out of state.
Once again, it is unconstitutional for a court to assume that mothers make better parents. Additionally, courts may not base custody and visitation decisions solely on the gender of the parents, as opposed to what is in the child’s best interest. Thus, a mother would not necessarily receive more or different visitation rights than a father.
It is rare that courts will deny visitation rights entirely. As previously mentioned, a court will likely only deny visitation rights if there is some history of abuse or domestic violence. It is more likely that a court would instead order supervised visitation. This is where a parent still gets time with the child while being supervised by a neutral third party.
Supervised visitation may be ordered in the following situations:
- If there needs to be a reintroduction of parent and child;
- If there are parenting concerns or mental illnesses to consider;
- If there is a history of abuse, substance abuse, or neglect; or
- If there is a threat of parental kidnapping.
If either parent violates the visitation schedule, there can be serious legal consequences. The violating parent may lose their visitation rights, be in contempt of court, or even face criminal charges. It is important that you seek a modification if you are unable to follow the guidelines set forth by the agreement.
There are two specific circumstances in which a court will modify a previously ordered visitation schedule. As always, the best interests of the child is the first consideration. If the current agreement no longer serves the child’s best interests, it is likely that the agreement will be modified in order to better serve the child. Additionally, if there has been a significant or material change in circumstances since the order was originally entered, the courts will consider a modification.
Some examples of a material change in circumstances includes, but is not limited to the following:
- A long distance move, making the current visitation schedule impractical;
- The parent who is not requesting the modification has created an unsafe home environment for the child; or
- The parent who is not requesting the modification repeatedly ignores or violates the current visitation schedule.
It is more likely that a modification will be granted if both parties are in agreement regarding the new terms and what will be best for their child. If you are requesting a modification because of noncompliance, it is important that you keep records of your efforts to obtain cooperation from the other parent. Further, you should document any records showing that you have contacted the police as your first step.
You should absolutely consult with a skilled and knowledgeable child visitation attorney if you have not received the visitation rights you think you are entitled to. An experienced attorney can help you understand your state’s specific laws, as well as exactly what rights you are entitled to. Further, they can represent your interest in front of a court, if necessary.