When a couple separates or divorces, the issue of child custody and visitation becomes very important. Many parents are able to work out an agreement regarding where the children will live, and visitation with the other parent on their own. Other parents find this to be a hot-button issue drenched in emotional pain, anger, and resentment, making it necessary for the court to decide important issues of custody and visitation for them. To explore this concept, consider the following visitation definition.
Definition of Visitation
- A formal visit, as permitted by a court order granting of visitation rights
- Visits between a non-custodial parent and his or her child(ren).
1275-1325 Latin vīsitātiōn
When two people who have children are no longer together, it is usually in the best interest of the children to have a relationship with both parents. When a separation or divorce occurs, it is common for one parent to maintain primary physical custody of the children, becoming the “custodial parent.” The custodial parent is the primary caretaker and this is where the children spend the majority of their time. The parent with whom the children do not live (“non-custodial parent”) has a right to visit, and maintain a relationship, with the children, however, regardless of the custodial parent’s wishes. Child visitation rights are addressed during custody proceedings.
When awarding custody, or visitation rights, the court gives primary consideration to the children’s welfare and safety. A non-custodial parent is granted child visitation rights, unless the court determines that visitation is not in the best interests of the children. If the court awards visitation to the non-custodial parent, he or she has a right to visit with the children according to a schedule agreed upon by the parents, or according to a scheduled ordered by the court.
Parents who work out a schedule honoring the non-custodial parent’s visitation rights often find they are happier with the result, having scheduled visitation when it is convenient for both parents, as well as the children. This type of parenting plan is less stressful for all involved, helping to ensure the children do not experience the tension and anger brewing between parents who cannot agree. While the custodial parent may feel he or she has a great deal of control in allowing visitation, the law does not allow either parent to be malicious or withhold visitation that has been ordered by the court. Additionally, no parent may deny visitation to the other parent because he or she has failed to pay child support.
Court ordered child custody and visitation are based on a written parenting plan, or “parenting agreement,” which specifies where the children will live primarily, and the schedule by which they will visit with the other parent. The visitation schedule contained in the parenting plan addresses not only regular visits, but holiday visits, summer vacations, the children’s birthdays, and other important times. A visitation schedule should be very specific in order to avoid conflict between the parents. The parenting plan generally specifies that the non-custodial parent has visitation every other weekend, and on alternating holidays.
Example Holiday Visitation:
|Holidays||Even Numbered Years||Odd Numbered Years|
|New Year’s Day—Jan 1st||Father||Mother|
|Mother’s Day—2nd Sunday in May||Mother||Mother|
|Father’s Day—2nd Sunday in June||Father||Father|
|Independence Day—July 4th||Mother||Father|
|Thanksgiving—4th Thursday in Nov||Father||Mother|
|Christmas Eve—Dec 24th||Mother||Father|
|Christmas Day—Dec 25th||Father||Mother|
|Winter Break||Split 50/50||Split 50/50|
|Your child’s birthday||Celebrate twice||Celebrate twice|
Frequent and Continuing Contact
Child custody laws in the U.S. recognize that children need to have frequent and continuing contact with both parents, and that both parents have a right and responsibility to raise happy, healthy children. Frequent and continuing contact is a vital factor in ensuring the children have a healthy relationship with both parents, regardless of the situation. This is so important that, in making a custody and visitation order, a judge gives great consideration to which parent will be most likely to allow, and even encourage the children to have frequent and continuing contact with the other parent. This includes regular, frequent visits, and unrestricted, unmonitored communication by phone, email, and other methods between the non-custodial parent and the children.
Denial of Visitation Rights
Non-custodial parents have an automatic right to visit with their children according to a schedule detailed in a parenting plan. Unfortunately, circumstances occur in which visitation between a child and non-custodial parent is not in the child’s best interest. In such cases, the court has the authority to require supervised visitation, or to otherwise restrict, withhold, or terminate a parent’s visitation rights. Some common reasons for denial of visitation rights include:
- The parent is shown to be abusive, whether physically, mentally, emotionally, or sexually, to the child or a sibling
- The parent has committed violence toward the child or a sibling
- The parent has a history of substance abuse
- The parent is a flight risk, making it likely he or she will leave the state with the child
- The parent has had his or her parental rights terminated
In a circumstance in which the court deems a child would not be safe from harm while visiting with a non-custodial parent, supervised visitation may be ordered. Supervised visitation occurs on a specified schedule, but requires that another competent adult be present throughout the visit. Just who may supervise such visits is generally specified in the custody and visitation order, and may be a neutral family member or friend, or the court may order supervised visitation to occur at an agency that provides such services.
Most orders for supervised visitation are temporary, as the non-custodial parent has been given specific instructions on what needs to be done to have regular visitation rights restored. This may include substance abuse counseling or rehab, anger management, regular drug testing, and other specific remedies. A non-custodial parent may also be granted only supervised visitation until he or she finds a suitable home or living environment in which the children will be safe.
For example, Mark has been granted visitation with his small children, but after completing a drug rehab program, he has moved into a halfway house in a crime riddled neighborhood. Mark is likely to be required to have supervised visitation at an agency until he (1) moves into a home in a safe environment, and (2) successfully passes weekly drug tests for a minimum of six months.
The term parental alienation refers to a situation in which one parent negatively influences a child’s thoughts or feelings toward the other parent. This can occur when a parent leads a child to believe that the other parent is at fault for the divorce, or that the other parent is a bad person. Children exposed to negative attitudes about a parent often begin expressing a dislike to the other parent, or begin refusing to have contact with that parent. Parental alienation has such a serious impact on the parent/child relationship, that the law considers it grounds to remove the child from the alienating parent’s primary custody.
Mental health professionals describe this situation as Parental Alienation Syndrome (“PAS”), and note that therapy in different forms is often necessary to repair the relationship between a child and the parent subject to alienation tactics.
Signs of Parental Alienation
Mental health professionals note that PAS is more than psychological programming or brainwashing, as the child is encouraged to participate in demeaning the alienated parent. The signs exhibited by a child exposed to parental alienation include:
- Denigration – the child speaks negatively about the alienated parent, sometimes using foul language.
- Frivolous Reasoning – the child gives frivolous, weak, or illogical reasons for his negative attitude toward the alienated parent.
- Independent Thinking – the child insists he or she came up with the ideas of denigration alone, asserting no one told him or her to say or believe those things.
- No Ambivalence – the child is sure of his or her feelings, with no faltering between love and hate for the alienated parent, confidently expressing only hate.
- No Guilt – the child shows no sign of feeling guilt or cruelty over his or her treatment of the alienated parent.
- Protective of Alienating Parent – the child feels the need to protect the alienating parent.
- Borrowed Scenarios – the child vividly describes situations he could not possibly have been involved it.
The Court’s Response to Parental Alienation
Either parent may be the perpetrator of parental alienation, whether the custodial or non-custodial parent, mother or father, though statistically, mothers are guilty of engaging in campaigns of parental alienation against fathers. Legal tactics used by the court to combat parental alienation vary, depending on the severity. Mild forms of alienation often result in the child remaining with the alienating parent, with family counseling being strongly recommended. More serious cases of parental alienation, however, may result in custody being transferred to the alienated parent, with PAS therapy being court-ordered.
In severe cases of parental alienation, or continuing alienation after court orders to the contrary, the alienating parent may also face severely restricted supervised visitation, and monetary sanctions. The alienating parent may also be put on house arrest, or even incarcerated.
Related Legal Terms and Issues
- Authority – The right or power to make decisions, to give orders, or to control something or someone.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.