In the context of legal separation or divorce, as well as in other situations, each parent may have different rights regarding their child or children. In most cases, each parent will have rights to child custody and child visitation.
Child custody and child visitation are two family law legal issues which are separate and distinct but that interact and overlap with one another.
Child custody includes the caretaking rights that a parent has to have a child reside with them as well as includes various other legal rights regarding the child, which includes the right to make decisions on their behalf. Custody rights may be divided between the parents.
There are several different types of custody and custody arrangements, which include:
- Physical custody, which refers to a parent’s rights to have the child live or stay with them. In most cases, the parent with whom the child resides is called the custodial parent, while the other is called the non-custodial parent;
- Legal custody, which refers to the parent’s rights to make important legal decisions on the child’s behalf;
- Sole custody, where one parent has all the rights to the child;
- Joint or shared custody, where the parents can split physical custody and legal custody rights in a way prescribed by the court; and
- Various other types of custody rights.
Child visitation includes the rights that the parent has to visit with their child or to have their child physically with them for a short period of time. Typically, this refers to the rights of a non-custodial parent.
Since the non-custodial parent does not have custody of their child the majority of the time, the court may grant them specific times during the week where they are permitted to visit with the child, which often includes weekends or every other week.
Determining child custody and visitation arrangements can be a very complex process. There are many factors which must be reviewed, including:
- The background and abilities of the parents;
- The child’s background; and
- Other relevant elements.
Any custody and visitation arrangement will be made through the lens of the child’s best interest standard.
What is the Child’s Best Interest Standard?
The majority of family courts across the United States use the standard which is called the child’s best interests standard. Although there is no perfect formula for determining the child’s best interests, the analysis used by courts and family court mediators often involves a variety of factors that are tailored to the particular child involved.
Therefore, when determining which party gets custody and visitation and the terms of the custody and visitation, the interests of the child will prevail over their parent’s desires. Family law issues, including custody and visitation, can vary by state.
What Can You Do If Your Child Custody and Visitation Order was Violated?
In the best case scenarios, child custody and visitation agreements are determined and agreed to by the parents and then approved by the court, which makes it a legally enforceable agreement. Since the court-approved agreement is legally enforceable, a violation of child custody and visitation order is treated very seriously and may lead to legal consequences.
Some examples of violations of these types of orders may include:
- A parent who keeps the child with them for a longer period of time than what is provided for in the custody or visitation order;
- Failure to inform the other parent of the whereabouts of the child;
- Taking the child on a long trip without getting approval beforehand;
- Taking the child outside of state lines, which can also lead to federal issues;
- Allowing an unauthorized individual to care for the child;
- Denying the other parent their court-ordered custody or visitation rights;
- Various other violations.
If these situations do arise, it is important for individuals not to attempt to take matters into their own hands. If a violation occurs, an individual should first contact the relevant authorities, which may include law enforcement, especially if that child has been gone for a period of time or is missing.
In addition, it is advisable for the individual to inform the court regarding the violation as soon as possible once a violation has been recognized. That way, the individual can also avoid potentially engaging in actions which may also be a violation.
What Happens if You do not Follow a Court Order for Child Custody or Visitation?
A violation of a court order for child custody or visitation may lead to serious consequences. Because the arrangement is a court order, the violation of a child custody or visitation agreement may lead to contempt of court issues. This may result in consequences which may include possible criminal penalties such as jail time or criminal fines.
In addition, and of utmost concern, is that a violation of a custody or visitation order may lead to a loss of parental rights. If the individual is the custodial parent, they may lose their custody rights to their child, or have their custody rights reduced.
If the individual is the noncustodial parent, they may lose some or all of their visitation rights as well as their current custody rights. Therefore, seeking to gain additional custody or visitation rights or time outside of the approval of the court may create a situation where an individual loses custody or visitation rights instead.
How Can I Avoid a Child Custody or Visitation Dispute?
Although a child custody or visitation dispute or violation may be serious, there may be steps an individual can take to avoid them. The first step is to ensure that the child custody and visitation agreement is formalized and approved by the court, making it legally enforceable. In some cases, simply having a legally enforceable order prevents violations and disputes.
In addition, if there is a dispute or a disagreement regarding the terms of custody and visitation, an individual should seek a modification of the child custody or visitation order. This may prevent a situation in which one or both of the parents attempt to take matters into their own hands and attempt to create a new arrangement. Any desired changes should be approved by the court prior to being implemented.
Failure to have a custody or visitation order modified may also have negative effects on the child involved. It may cause the child to be placed in situations which are confusing or even dangerous. In contrast, if the desired changes are made through the family court system, the court can make a proper determination regarding the changes using the child’s best interests standard.
Should I Get a Family Law Attorney to Help with My Child Custody or Visitation Dispute?
It is essential to have the assistance of a child custody lawyer with any custody or visitation dispute issues you may be facing. Child custody and visitation issues may have legal effects and consequences on either or both parents. More importantly, they may place the child in situations which are not ideal.
Your attorney can assist you with your child custody and visitation dispute issues and help you create a new agreement with your child’s other parent. They can also advise you of the laws in your state as well as the possible consequences of different decisions you may be considering. Having an attorney’s assistance will ensure the interests of the most important party, your child, are first and foremost.