When parents are facing divorce or legal separation, they will need to consider issues of child custody and visitation. In order to establish legal custody, whether that is primary, sole, or joint custody, the parents will enter into an agreement between themselves. Alternatively, if the parents cannot reach an agreed final custody order, the court will make the determination.
Custody orders can provide parents with peace of mind when determining primary responsibility for a child. Generally speaking, family courts favor joint custody in order to allow children to have continued full access to each parent. This is also to ensure each parent’s continuing involvement in the child’s life.
Joint custody may be appropriate when the children live geographically close to each other, so as to reduce any disruption to the child’s school schedule. The child’s age and maturity will also influence this decision. Whatever the type of custody ordered, the order will detail who will be responsible for the child’s physical living arrangement. This parent will also be responsible for their health and well-being, education, and medical needs.
To obtain a custody order, you will need to petition the family court in connection with the divorce or legal separation proceeding. If there are questions of paternity, they can be resolved at that time. In some jurisdictions, if the parents are unmarried, the mother is issued primary custody initially until the father petitions the court to be awarded custody and visitation.
If the person seeking custody is not a parent, they may seek a non-parent custodial order. An example of this would be if a grandparent wished to obtain custody of their grandchild.
What Are Child Visitation Rights?
Whether in the custody order, or by separate order, the family court will outline the visitation rights of the non-custodial parent and the terms of the visitation. An example of this would be distinguishing whether visitation is to be supervised or unsupervised. Child visitation rights are what allow the non-custodial parent to take physical custody of the child for a limited, predetermined amount of time. The parents may also make their own agreement about a visitation schedule.
The courts wish for there to be as little disruption to the child’s life as possible. For this reason, they will consider several factors when determining the right to visitation and the schedule. First and foremost, the court takes the child’s best interests into consideration. They will then consider other factors such as:
- The age and the overall well-being of the child;
- The location of each parent;
- The current employment and work history of both parents;
- If the child is old enough, the court may ask for his or her living preference; and
- Each parent’s daily work and life schedules.
Courts generally prefer for both parents to have an active role in their child’s life. However, if there are past issues such as abuse or domestic violence, the judge will most certainly take these into consideration. The judge may require supervised visitation, and in rare cases, no visitation.
What Do Child Custody and Visitation Agreements Typically Contain?
A child visitation agreement is between two parties who share the goal of creating a visitation schedule with their child. The arrangement outlines each parent’s visitation rights, as well as their duties and responsibilities to their child. It is best if the parents can reach an agreement together. However, if they cannot, the court will intervene and make the final determination.
It is important that all issues affecting custody and visitation are detailed as clearly as possible. Generally speaking, a child custody or visitation agreement may include:
- The child’s primary residence;
- A detailed visitation schedule, including where the child will be picked up;
- Activities the parents may participate in;
- The time and duration of each visit;
- Geographic restrictions, such as where the child will be taken or what prerequisites need to be met before the child can be taken out of the child’s primary location; and
- Modification instructions, should the need arise.
As previously mentioned, the order should spell out whether the visit should be supervised or unsupervised. Supervised visits are generally ordered when there has been abuse by the non-custodial parent towards the child or the custodial parent. These visits may also be ordered when there is a threat of kidnapping by the non-custodial parent. If supervised visit is ordered, a third-party usually performs this function of supervisor, instead of the custodial parent.
If the parents can be amicable and work together, child custody and visitation agreements can be agreed to in such a way that reduces legal fees and maintains good relations between the parents. And, if the parents can agree with each other regarding custody and visitation, court appearances will be greatly reduced.
Virtual visitation can be included in the visitation schedule, especially when the non-custodial parent has had to move out of state or out of the country away from the child. Such visitation can also be supervised or unsupervised.
How Do I Get a Court Order for Child Custody or Visitation?
The process for getting a court order for child custody or visitation may vary from state to state. This is because each state maintains their own statutes and laws regarding child custody and visitation. However, all courts will put the child’s best interests above the needs and/or wants of the parents or parties involved.
The parents or parties involved should draft a parenting plan together, which they would then present to the court. If the judge approves of the parenting plan, it becomes an order. The judge is more likely to approve of a plan if the parties involved are in agreement and present a united front.
Once again, if the parties cannot agree, the judge will be responsible for determining the custody order. In some cases, a jury may also be responsible for determining the final child custody order and division of property.
How Do I Ensure a Custodial and Visitation Agreement Is Enforceable?
Once a court signs off on an agreement or order, the parties are required to follow the instructions contained within it. Failure to do so puts them at risk of being held in contempt, which carries several penalties. Because they are legally enforceable, violations of child custody and visitation orders are treated seriously and can lead to legal consequences.
Some common examples of violations may include:
- Keeping the child with you for a longer visit than what is provided for in the custody or visitation order;
- Failing to inform the other parent of the child’s location;
- Taking the child on a long trip without asking for approval first;
- Taking the child outside of state lines, as this can lead to federal issues;
- Allowing an unauthorized person to care for the child;
- Denying the other parent their lawful custody or visitation rights; and
- Various other violations.
It is advised that if these types of situations occur, do not attempt to take matters into your own hands. You should first contact the relevant authorities, such as the police, especially if the child has been gone for some time or is missing. Additionally, it is advised that you inform the court as soon as possible once a potential violation has been recognized. By doing so, you can avoid potentially doing something that might also be considered a violation.
Violations of a custody or visitation order can lead to the loss of parental rights for the parent who is in violation. If they are the custodial parent, they may lose their custody rights to the child, or have their custody reduced. If they are the noncustodial parent, they could lose some or all of their visitation rights. They could possibly lose whatever custody rights they do have.
Do I Need a Lawyer to Help Me Obtain a Court Order for Custody or Visitation Rights?
In order to preserve your legal right to custody and visitation with your child, you should consult with a skilled and local child custody attorney. A knowledgeable family law attorney will be aware of how local laws will affect your case, and help ensure that you are aware of your legal rights and parental responsibilities. Additionally, an experienced and local family law attorney will also be able to represent you in court as needed should any issues arise.
Further, if there has been a significant change in your life since your past order, you may be able to modify a past agreement. An attorney can also assist you in determining if you qualify for a modification of a prior child custody order.