Visitation Against Mother’s Wishes

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 How Does a Judge Decide a Visitation Arrangement?

When a couple with a child divorces or separates visitation and custody issues can be emotional and contentious. In some cases, the parties come to an amicable agreement on visitation. In others, however, disagreements lead to resentment and harsh feelings, leading to cantankerous court hearings. Parents sometimes use visitation and custody disputes as a tool against the other parent.

In the long run, the couple must abide by a formal visitation schedule detailing which days and holidays the non-custodial parent is allowed to visit the child. It is best if the parents can design their own schedule – after all, they know the child’s needs better than the court. The court will design one for them if they cannot agree on a schedule.

Will a court grant visitation the mother does not want the other parent to have? Yes. Courts and state legislatures have established vigorous guidelines to determine post-divorce arrangements for a child. These guidelines generally do not give much weight to the parents’ preferences. Once the visitation issue ends up in a courtroom, the parents’ wishes take a definite back seat to the judge’s need to weigh in on what is best for the child or children.

The simple truth is that almost all non-custodial parents are entitled to some basic visitation rights. No matter the mother’s preferences about the child seeing the other mother or the father, it is generally in the child’s best interest to maintain a healthy relationship with both of their parents.

In instances of abuse or domestic violence committed against the mother, the judge will consider this information when determining visitation rights. One alternative is to require that all visitation be supervised. It is rare for family judges to deny a parent all visitation rights entirely.

What Is Considered to Be the “Best Interest” of the Child?

Each state has its own guidelines for child custody and visitation. The most common factor in all such cases is what is in the child’s best interest. But what does that really mean, and how do courts apply it?

Because each case is different, there is no one answer regarding what is in the “best interest” of the custodial arrangements for a child. Judges will analyze arguments presented by each side and weigh those, along with any laws or formulas put in place by state legislatures. Ultimately, the court will place what is best for the child ahead of any agenda for the parents.

What Are Some of the Factors Courts Look at to Determine the Child’s Best Interest?

As mentioned, each state has its own guidelines for determining a child’s “best interests.” However, some considerations are always considered, no matter where you live.

  • The gender, age, and overall health status of the child.
  • The nature and quality of the non-custodial parent’s relationship with the child.
  • Does the child have special needs? The court will look at whether the child is used to a certain living or care situation provided by the custodial parent and whether the other parent will be able to duplicate that in their home if visitation is granted.
  • Stability can be key. Will the non-custodial parent be able to keep to a regular visitation schedule? Does that parent frequently travel for work? It is hard to work out a visitation schedule that is fair to the child if one parent can only commit to the schedule sometimes.

Additional Factors to Consider

  • The court may also consider the opinions of character witnesses on behalf of the non-custodial parent.
  • The child’s physical safety in the other parent’s neighborhood.
  • Other family and familial relationships can also be important. Courts want an environment where relationships with siblings, grandparents, and other family members are maintained. If the non-custodial parent has the desire and ability to strengthen the child’s relationships with aunts, uncles, and half-siblings by spending weekly time together, that parent is likely to be granted liberal visitation rights.
  • How will the parents deal with each other? If the non-custodial parent appears to be more or less unable to set feelings aside and deal with questions concerning the child on a calm, logical basis – especially when you argue with the other parent in front of the child – that parent’s visitation might be limited.
  • In some states, if the child is 12 – 14, the court may take into account the child’s preferences (the preferences of older children are almost always given serious weight). The court will consider the child’s opinion as long as the child demonstrates a certain level of maturity.

Can Visitation Orders Be Changed?

For the child’s stability, judges are reluctant to change a visitation order once it has been issued. However, if there is a major change in the parties’ circumstances, such as a job or career change that affects the primary custodial parent’s ability to spend time with the child or children, then a court may change the existing, established visitation and custody orders.

For instance, if a mother has primary custody, but her new job requires her to travel a lot, the father may now be awarded extended visitation by a court, even over the mother’s objections.

Proper grounds for modification generally include just cause or a change in circumstances. A judge may agree to modify an order if the father has skipped out on most of the scheduled visits with their child. The mother could successfully argue that it is not in the child’s best interest to keep giving an absent parent visitation rights. As such, the judge may decide to put the disappearing father on a trial period or take the visits away completely.

Another reason a judge would modify an order in the mother’s favor is if the mother believes there has been an instance of child abuse. This is extremely serious and would be considered an immediate danger to the child’s well-being.
Say a parent only had visitation one time a week because they had a substance abuse problem. If they went to rehab and turned their life around, a judge may deem this a changed circumstance that warrants increased custody, even over the mother’s wishes.

One instance where a judge will be reluctant to allow modification is when the only reason is that the child wants the order changed. However, the court may seek the child’s input during a hearing and weigh it with the other evidence to determine what is in the child’s best interest. The child’s age is also a factor as to how strongly the court will consider their wishes.

What If Grandparents Want Visitation Rights Over the Objections of the Mother?

As in many other questions, this depends upon the state in which one lives. Approximately half of the states will allow grandparents to have officially ordered visitation with the child.

This means that the court may grant the desires of grandparents to know their grandchild or grandchildren, even over the objections of one of the parents. Courts may carve out visitation time for the grandparents unless the custodial parent can show that the grandparent presents a serious risk of potential harm to the child (for example, perhaps the grandparent has been abusive in the past or remains almost drunk throughout the day).

Grandparents do not have an automatic right to visit their grandkids. They must petition the court to grant them formal visitation rights. Courts consider the following factors when deciding whether to grant the request:

  • How far the parents reside from the grandparents
  • The grandparents’ lifestyle
  • Whether the grandparents engage in drug or alcohol abuse
  • The child’s desire to see the grandparents
  • How attached the child is to their grandparents
  • Whether the parents have refused to allow the child to see their grandparents. All other things being equal, a court is more likely to award grandparent visitation rights if a parent has refused to allow the grandparents to see the child voluntarily without any good reason.

Do I Need an Attorney for Help With Visitation Matters?

Visitation cases are very stressful and can be very detailed. Whether you are trying to negotiate with the other parent or the grandparents or using the family court system to decide visitation issues, an experienced child visitation lawyer can guide you through the process and fight for what is best for your child.


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