In a divorce context, the children typically live mostly with one parent or the other. The parent that the children live with most of the time is called the “custodial” parent, and the other is called the “non-custodial” parent. The custodial parent usually also has “legal” custody of the child or children, meaning that they have the ability to make important decisions on behalf of the child.
In the interests of the children, the non-custodial parent is usually granted the right to reasonable visitation with the children. This can of course depend on various factors and may be affected by state laws. However, the idea behind this is that the children should have some exposure and time with the other parent besides their custodial parent.
Who Decides What is “Reasonable” in a Visitation Context?
In most cases, the two ex-spouses might be able to work out a schedule together that they are both satisfied with. These can be submitted to the court for approval by the court so that it becomes enforceable. Overall, the custodial parent has much power to decide what is or is not reasonable visitation. However, the custodial parent’s decision-making power is not absolute and still needs court approval.
For example, the custodial parent can refuse visitation under certain conditions, such as in the middle of the night or while the other parent is intoxicated. However, the custodial parent cannot legally deny visitation just because he or she is upset with the non-custodial parent, or because the children do not want to visit with the other parent.
So if a parent believes any aspect of the visitation agreement is unreasonable, it is important to tell the judge presiding over their case. Do not break the visitation agreement, do not do anything sneaky or lie to the other spouse or to the judge. Instead, follow the agreement, create a list of reasons why you believe the agreement is unreasonable, and then bring your complaint to the court as soon as you can. From there, you must wait until the judge decides and then see what options are available to you.
If you attempt to make matters into your own hands then you run the risk of losing visitation altogether. While you may feel there is an element of injustice, it’s important to follow the right steps or you can end up in big trouble.
What are Some Factors that Courts Consider When Approving Visitation Schedules?
Courts must review various factors when reviewing and approving child visitation schedules. These can include:
- The school and extra-curricular activity schedule of the children;
- The work schedules of each parent;
- The exact custody arrangement (i.e., days of the week for custody);
- The location and residence of each parent;
- History of interactions between the noncustodial parent and the children;
- Whether there have been any incidents of abuse involved;
- Any special needs of the child, including physical, mental, and emotional needs; and
- Various other factors.
Generally speaking, all custody and visitation determinations are made using the “child’s best interest” standard. This means that visitation decisions are made in ways that prioritizes the child’s well-being. The personal preferences or requests of each parent receive less priority than the child’s safety and upbringing.
If the child is old enough, as determined by the court and local laws, then the child may be able to voice how often they wish to see either parent. However, it will depend on the circumstances and the children involved.
What if My Ex-Spouse Has Custody and Refuses to Be “Reasonable”?
If the two parents cannot come to a visitation agreement on their own, the court will decide on a schedule. A common child visitation schedule may look something like this:
- Visitation with the non-custodial parent every other weekend;
- Visitation on certain holidays, such as Easter and New Years, or alternatively, Thanksgiving and Christmas;
- Five continuous weeks with the non-custodial parent during the summer months;
- Unlimited written and electronic communication with the child’s non-custodial parent.
Can Visitation Schedules be Changed or Modified?
If a child visitation is no longer reasonable for the child or either parent, a modification of a visitation order can be submitted and approved with the court. In fact, it is generally necessary and highly advisable for the parents to submit changes with the court before they attempt to implement any changes on their own. This will help to ensure that the adjustments still fit within the child’s best interests.
Lastly, the custodial parent should never attempt to withhold visitation from the noncustodial parent or attempt to change it without the court’s notice. In emergency situations, or situations where abuse is a factor, a temporary restraining order or emergency protective order can be obtained from the court. This will provide protection for the child and parent until more permanent changes can be made to the visitation and custody arrangement.
What Happens if Visitation Orders are Violated?
A violation of a visitation order can lead to serious legal consequences, regardless of which party violates the order. For both the custodial or noncustodial parent, a violation can have consequences such as:
- Loss of Custody or Visitation Rights: Violations of a custody or visitation can lead to a loss of parental rights. It can also affect one’s visitation rights in the future;
- Contempt of Court: Violating a custody order can lead to a contempt of court order; and
- Criminal Consequences: In many cases, violating a custody or visitation order can involve elements of parental kidnapping. This can lead to criminal charges and consequences, which can include criminal fines and possible jail sentences.
Do I Need a Lawyer for Help with Reasonable Visitation Issues?
If you are a parent seeking to establish or modify child visitation rights, then it may be wise to consult with a child visitation lawyer to discuss your options. Working with an attorney can help you understand your legal rights, and your attorney can help you navigate the complicated doctrines of law at work.