These frequently asked questions will help you sort out your concerns about child visitation after a divorce or separation.
When a court determines the visitation rights of a noncustodial parent, it usually orders "reasonable" visitation, leaving it to the parents to work out a precise schedule of time and place. This allows the parents to exercise flexibility by taking into consideration both the parents’ and the children’s schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times, and duration of visits. He or she isn’t legally obligated to agree to any particular schedule, but judges do take note of who is and who is not flexible. If you are uncooperative merely to vex your ex, it can backfire when you need to ask the court for something in the future.
Parents have to cooperate and communicate frequently, for the reasonable visitation approach to succeed. If you suspect right off the bat that reasonable visitation won’t work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you’ve already agreed to reasonable visitation and it isn’t working out — for example, one parent is consistently late, skips scheduled visits, or doesn’t inform the other parent where he or she is planning on taking the children — you can go back to court and ask that the arrangement be changed.
Sometimes courts will set up a detailed visitation schedule, including the times and places for visitation with the noncustodial parent — for example, every other weekend or every Tuesday and Thursday evening. A court will be inclined to order a fixed schedule if the hostility between the parents is so severe that the need for regular contact between them may be detrimental to the child. A fixed visitation schedule can still be generous, but it removes opportunities for one party to control the other’s time and allows the children to experience predictability in an often unsettling period.
My ex-spouse was physically abusive to me and the children. How can abuse be prevented during visits with the children?
When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised. This means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed on by the parents or appointed by the court. No matter how the adult is chosen, he or she must be approved by the court that ordered the supervised visitation.
All 50 states currently have some type of "grandparent visitation" statute, through which grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with their grandchildren. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances. And the courts give great deference to a parent’s decision to limit grandparent visitation.
Approximately twenty states have "restrictive" visitation statutes, meaning that generally only grandparents can get a court order for visitation — and only if the child’s parents are divorcing or if one or both parents have died. States with more permissive visitation laws allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child.
Your child’s grandparents may take you to court to try to force visitation. If there is a reason why your child should not visit with a grandparent, by all means raise the issue in court. But make sure the reason is one affecting your child’s life and not your own needs, pride, or anger.
If there’s no valid reason a court would protect the children from the grandparents, it’s likely that the grandparents will receive some form of visitation, especially if a prior healthy relationship existed between the grandparents and your children. So if you have to appear in court, it’s best to arrive with a proposed visitation schedule in hand. It’s better to have your own wishes enforced than to have a judge set the schedule.
It’s reasonable to offer between one and three afternoons a month, for a few hours at a time. This could be for lunch and a movie or a play session at the local park. If you and your child don’t know the grandparents very well, you can ask the court to allow visitation to occur in your presence. If the grandparents live in another state, visitation over an entire weekend may be considered.
But before you end up in court, try to reach a solution that works for all of you. You may find that a few hundred dollars spent to hire a mediator (neutral third party) to help you reach a visitation agreement is money well spent.
Grandparents who face parental resistance to their contact with grandchildren might consider requesting a mediation session with the children’s parents. (In fact, some state courts won’t consider your petition for visitation until the parties have attended mediation together.) Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with.
If mediation doesn’t work and you end up in court petitioning for visitation rights, be prepared to testify about your relationship with your grandchildren, your relationship with the parents, any custody or visitation arrangements you had before the court action, and the last time you saw your grandchildren. Also, be prepared to discuss your personal history, including any medical troubles or problems with the law.
Remember that the court is scrutinizing you to decide whether you should spend time with a child — and the judge won’t hesitate to pry into personal matters. For example, if you’re a chain smoker, you may be asked to refrain from smoking in the child’s presence. If you don’t, the parent may ask the court to discontinue your visitation. If you cannot, for health reasons, perform some tasks independently or correctly, your visitation may be supervised. This doesn’t mean the court is prejudiced against you. You face standards similar to those faced by a noncustodial parent seeking visitation: The children’s welfare is always given the highest priority, although the courts also give great deference to a parent’s decision to limit visitation.