Visitation Rights and De Facto Acting Parents

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 What Is a De Facto Parent?

A de facto parent is an adult who, although not biologically related to a child, has assumed responsibility for the child’s basic needs or regularly provided care.

This person may also have developed a parent-like bond with the child through daily interaction.
Often, de facto parents become involved in situations where children have only one or no biological parents present.

Typically, a court assigns a de facto parent to take on parenting responsibilities for the child.

Who Can Be a De Facto Parent?

De facto parents can be a range of people, including:

  • Maternal or paternal grandparents;
  • Close relatives, such as aunts and uncles;
  • Stepparents; and
  • Non-relatives if no close relative is available to care for the child.

When determining a de facto parent, the court prioritizes the child’s best interests, considering factors such as the psychological bond between the child and the applicant and whether the applicant has consistently acted as a parent to the child over an extended period.

What Is the Child’s Best Interest Standard?

The child’s best interest standard is a legal principle used in family law to guide courts and judges in making decisions about child custody, visitation, and other matters affecting a child’s welfare.

The principle is based on the idea that the interests and well-being of the child should be the primary consideration in any decision that is made.

When determining a child’s best interest, the court considers the child’s physical and emotional health, safety, educational needs, the relationship between the child and each parent or de facto parent, and the ability of each parent or de facto parent to provide for the child’s needs.

Other factors that may be taken into account include:

  • The child’s age and gender.
  • The child’s preferences (if the child is old enough to express them).
  • The willingness of each parent to foster a relationship between the child and the other parent.

Do De Facto Parents Have Any Visitation Rights?

Visitation rights for de facto parents depend on the state and the specific parenting arrangement.

Generally, de facto parent arrangements arise when the child’s biological parent(s) are unable or unavailable to care for the child, such as when the biological parent:

  • Is absent or incarcerated
  • Is in the military and deployed
  • Is incapacitated due to illness or injury
  • Has passed away
  • Is otherwise unable or unwilling to fulfill their parental responsibilities.

De facto parents can be granted significant visitation rights, including weekend visits or rotational arrangements with the biological parent.

Courts consider factors like the existence of a blood relationship, the history of contact between the child and the de facto parent, the practicality of visitation for the child’s development, and potential interference with the custodial parent’s upbringing.

Courts also take into account the concept of “in loco parentis,” referring to a situation where an adult has developed such a close relationship with the child that the child views them as a parent. This often occurs with stepparents or foster parents, but ultimately, the child’s best interests are the primary consideration.

Can Visitation Orders Be Contested?

Visitation orders issued by a judge are generally binding and enforceable by law. However, under certain circumstances, a de facto parent can contest or seek to alter a visitation order through a formal request, which is not guaranteed to be granted.

Circumstances that may justify contesting a visitation order include:

  • Violation of the original visitation order by the custodial parent: For instance, if the custodial parent consistently interferes with the non-custodial parent’s visitation rights, such as canceling or rescheduling visits without sufficient justification or denying visits altogether.
  • Changes in circumstances that render the existing order no longer in the child’s best interests: For example, if the non-custodial parent’s work schedule changes significantly, making it impossible to adhere to the existing visitation schedule, or if the child develops a medical condition that requires additional care or attention.
  • The current custody arrangement causing harm or no longer benefiting the child: This may occur if the child’s physical or emotional well-being is compromised under the current visitation schedule, such as if the child is exposed to substance abuse or domestic violence during visits.
  • Errors made during the issuance of the original order: This could occur if the original visitation order was based on incorrect or incomplete information or if the judge made an error in the order’s wording or interpretation.
  • Fraud or falsification of documents related to the original order by the custodial party: For example, if the custodial parent misrepresented facts about the non-custodial parent to the judge, such as falsely accusing them of abuse or neglect, in order to obtain a more favorable visitation order.

To contest a visitation order, a de facto parent must provide evidence that supports their claim.

Examples of evidence that may be presented include:

  • Witness statements: Statements from people who have observed the child’s relationship with the de facto parent or the custodial parent and can testify to the child’s best interests.
  • Documentation of the child’s well-being: Medical records, school reports, or other documentation that demonstrate the child’s physical and emotional well-being and how the current visitation order is or is not serving their best interests.
  • Communication records: Text messages, emails, or other communication records that show attempts to communicate with the custodial parent regarding visitation, as well as any instances of interference or denial of visitation.
  • Expert testimony: Testimony from mental health professionals or other experts in child development or family dynamics that can provide insight into the child’s best interests and the impact of the current visitation order.

To present evidence in court, the de facto parent or their legal counsel may present it through various methods, such as:

  • Testimony: The de facto parent or other witnesses may be called to testify in court about their observations and experiences.
  • Exhibits: Any documentation, such as medical records, school reports, or communication records, may be entered as exhibits and presented to the court.

An experienced family law attorney can help the de facto parent navigate the legal process and present their evidence in the most effective way possible.

Do I Need an Attorney for Issues Regarding Visitation Rights and De Facto Parenting?

If you have questions about visitation rights and de facto parenting, it’s best to seek advice from a skilled child visitation attorney. They can help you understand your rights as a de facto parent and work with you to create a visitation schedule that benefits everyone involved.

Additionally, an experienced attorney can help you challenge or modify a visitation order and represent you in court if necessary.

LegalMatch can help connect you with a skilled child visitation attorney who can provide personalized legal advice tailored to your specific situation. By submitting your case details to LegalMatch, you can quickly and easily get matched with attorneys in your area who have experience in child visitation law. This can save you time and effort in searching for an attorney on your own and can also help you find an attorney who is a good fit for your needs.

LegalMatch offers a satisfaction guarantee, so you can have peace of mind knowing that you will be matched with an attorney who is right for you.

Don’t hesitate to consult with a qualified child visitation lawyer for the help you need.

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