Child Visitation: Privileges and Limitations

Custody Disputes

Parties entering a custody dispute or a divorce proceeding involving child visitation often inquire about visitation privileges by the so-called “non-custodial parent” – that is, the parent whose home is not the primary residence of the minor child.

Entirely separate from the determination of legal custody (which relates to the parties’ arrangements for major legal decisions to be made for and on behalf of the minor child) is the subject of a visitation arrangement, also sometimes referred to as a “parental access plan.”  Regardless of which parent is awarded legal custody, a non-custodial parent has a right to visit with his or her child, although such visitation is not guaranteed to be unfettered and unrestricted in all circumstances.

Best Case Scenario: Custody Disputes

In the best case scenario, the parties or their lawyers may arrange for “flexible, liberal rights of visitation” for the non-custodial parent, which might mean that the parties work out their access schedule amongst themselves, rather than reducing the intricacies of a schedule to writing.  In some instances, the parties might follow a broad-brush, general guideline for visits and holiday scheduling which ebbs and flows according to the parties’ schedules and the child’s activities and needs.

Worst Case Scenario: Custody Disputes

On the other end of the spectrum, visitation by a non-custodial parent can be suspended, temporarily denied, or restricted in some fashion by a court if it is found that a parent’s visitation with a minor child would be adverse to that child’s best interest.  If it can be demonstrated in a court of law that a child’s personal safety, physical, mental, or emotional well-being, would be negatively and seriously impacted by visitation with a parent, it is likely that such a parent’s visitation will be severely limited, if not suspended entirely.

However, any restriction of a parent’s ability to spend quality time with his or her child is not taken lightly – not by attorneys, and not by the courts.  Before taking such drastic measures, courts will look for compelling, factual predicates based on very specific, presently existing circumstances.  Before any type of restriction on visitation, a non-custodial parent has a right to a full evidentiary hearing, an opportunity to present and cross-examine witnesses, and a chance to argue to a court that the custodial parent has not established that continued, unlimited visitation would be injurious to the minor child’s best interests.

When Courts Deny Visitation

There are limited situations in which courts deem it appropriate to deny visitation entirely; others in which visitation is restricted in time, place, or manner; still others in which visitation is required to be supervised by a third party, such as a family member or an independent agency.

Obviously, acts or omissions by the non-custodial parent which have directly impacted the child (such as cases of physical abuse, or outright neglect for the child) are looked at most critically and could potentially result in the most drastic of remedies to protect a minor child.

Other Instances of Restricted Visitation

Of course, there are certain other factors which could – in isolated cases – result in restricted visitation by a non-custodial parent.  Violence or the threat of violence on the part of the non-custodial parent will be considered as an important factor, provided the evidence offered is competent and survives judicial scrutiny.  In very extreme cases only, a mental illness or a psychiatric condition could impact visitation time, but only where it is established, proven, and accepted by a court that there would be harm to the child as a result of the illness if visitation were to take place.

More commonly, issues concerning substance and/or alcohol abuse could and may impact visitation by a non-custodial parent, especially where the behavior is found to be likely to jeopardize a minor child’s welfare.  Even in these cases, with the best interests of the child in mind, courts are likely to favor a continued, healthy and loving relationship between the minor child and his or her non-custodial parent, provided that the visitation environment is such that the child will not be harmed or put at risk.

Visitation Agreements

Whether a visitation arrangement will be “flexible and liberal” or heavily regulated is dependent on the factual circumstances of each case, the weight of the evidence, the credibility of the parties and their witnesses, and what is determined by a court to be the best interests of the minor child or children.  A legal advisor in this area is challenged not merely to advance a client’s desires, but to simultaneously consider and protect the welfare of the minor child (and the parent-child relationship) when advising his or her client.

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