Parental Visitation

Child custody issues are never easy and visitation is often a primary concern of individuals going through a divorce. As an initial matter, it’s important to know your state’s child custody laws. Next, below you will find some of the most frequently asked questions regarding parental visitation rights after a separation or divorce.

If the judge presiding over your separation or divorce determined that you or your ex-spouse was entitled to “reasonable visitation,” this generally means that it is left to the parents of the child (you and your ex-spouse) to come up with a plan of parental visitation time. When the parents are still able to cooperate, this is generally preferred over other means of determining visitation schedules because it allows the parents to work around their respective schedules. The application Utah Code sections that you should review at 33-3-35 or Utah Code 33-3-35.1. If you have additional questions after reviewing this information here, you should contact a child custody lawyer for more information about your specific case.

In practice, however, the parent that has custodial rights will generally have more power and influence over what is considered “reasonable visitation” in terms of times and duration. The custodial parent has no legal duty to agree to any proposed visitation scheduled. However, if a parent is being inflexible just to be malicious towards his or her ex-spouse, a judge may take this into consideration if that parent asks for something later on.

In order for a reasonable visitation schedule to work, parents must be willing to communicate with each other in sane, rational manner. If you know or think that you and your ex-spouse will not be able to cooperate in a reasonable visitation plan, you should tell the judge so and insist on a fixed visitation schedule instead. In addition, if you and your ex are currently under a reasonable visitation plan that is not working, you may go back to the court and ask for a different arrangement in terms of parental visitation rights.

The judge placed me on a “fixed visitation” schedule. What is that?
In general, a fixed visitation scheduled is one where the judge orders times (and sometimes places) where the non-custodial parent is to have parental visitation. For example, a non-custodial parent could have visitation rights on Monday and Wednesday nights, or only on holiday weekends. Courts are more inclined to place parents on fixed visitation schedules when it appears clear that there is still conflict between the parents or when the parents are not willing to cooperate with each other. In addition, some courts are more inclined to issues fixed visitation schedules because it provides some stability that children can rely upon in a generally upsetting and confusing period of their lives.
My ex-spouse was often physically abusive to both me and our children. Despite this abuse, he/she still got visitation rights. How can I prevent abuse during child visitation time?

If your ex-spouse has a history of abuse, especially towards your child or children, you can point this out to the court when the court is deciding parental visitation rights. Generally speaking, if a court thinks that the non-custodial parent is likely to harm or abuse the child during his or her visitation time, the court will order that all visitation be supervised. This means that any time the non-custodial parent spends with the child must be in the presence of another adult (other than the custodial parent) that will prevent any abuse of the child. This other person could be someone agreed upon by the parents of the child, or sometimes it is a person that is appointed to the role by the court. However, all supervisors must be approved by the court before he or she can fill their role.

Grandparent Visitation

Every state in the county has some sort of law that allows types of grandparent visitation. Through these laws, grandparents (and sometimes others, like foster parents or stepparents) can ask a court to grant them the right to continue their relationships with the child or children. However, each law is a little different in what a grandparent needs to show in order to get this legal right. In addition, courts will generally give great weight to a parent’s decision to limit grandparent visitation.
Less than half the states in the union have restrictive statutes when it comes to grandparent visitation. In these states, it is sometimes only possible for a grandparent to get visitation rights in certain circumstances, like if one of the parents has died.

The remainder of the states generally have more permissive laws that allow the granting of grandparent visitation rights even if all the parents are alive. However, what is kept in mind in most situations is the well-being of the child.

Failure to Exercise Parent-time

Some custodial parents may seek to modify a visitation order based upon a non-custodial parent’s failure to exercise defined parenting time. While this may be appropriate in certain circumstances, many attorneys argue it is not the best course of action. After all, reducing parenting time for failure to exercise that time may not be understood by children. Often, when a non-custodial parent fails to exercise parenting time, the goal should be to bring that parent back into the child’s life to ensure that both parents are as involved as possible with the lives of their children. The child may suffer the emotional stress or trauma of feeling unloved or unwanted.

That said, some states have broadly addressed this concern by statute. In Tennessee, for instance, a Court may deviate upward from statutory guideline support due to a non-custodial parent’s failure to exercise defined parenting time. Not all states have agreed with this concept, and some courts have held that a Court cannot coerce a parent to become more involved by threatening a greater child support obligation.

How can I limit the visitation time the grandparents have with my children?
If you attempt to limit the visitation rights of your child’s grandparents, they may just end up taking you to court to enforce their rights. If you have good reason to try to deny the grandparents any sort of visitation rights (perhaps they are abusive or are teaching your children to hate you), you should probably feel pretty comfortable going to court to enforce your wishes so long as the evidence you have is credible.

However, you should probably not go to court to deny grandparents visitation merely for your own pride or to hurt them. If you do so, you will probably only end up wasting your time and money because the grandparents will probably receive visitation rights.

When you do go to court, it would probably be best to arrive with a planed out visitation schedule. By doing so, not only will you have a hand in determining the grandparent’s visitation rights, but you will also probably look better in the eyes of the court.

In general, grandparents should be allowed visitation rights of a few afternoons a month, often for a couple of hours at time. The length should be enough to allow a meal and an activity. If the grandparents are not normally around the children, you can ask the court to allow you or another court-approved party to observe and supervise the visits with the grandparents.

As mentioned before, if you decide to go to court to get grandparents visitation rights, it is most likely worth your time and money to hire a mediator to help you and the grandparents determine a visitation schedule that works for all parties.

More Visitation Issues

In most situations where a child’s parent is attempting to limit or restrict a grandparent’s visitation rights, the best first step is to go to a mediator to discuss the problem. In fact, in some states, a court will not even hear a grandparent’s argument before all parties go to a mediator to discuss the situation. You can often find mediators with experience in visitation problems by contacting your local or state bar association.
Unfortunately, mediation does not always work and you may end up in court fighting for visitation rights. If this is your situation, you should be prepared to argue and present evidence showing your strong relationship with your grandchild. The judge may ask you questions about your medical history to determine your health and can also ask you if you have had any problems with the law before.

It is worthwhile to keep in mind that the ultimate question that the judge keeps asking him or herself is “what is in the best interests of the child.” If you have bad habits, like smoking, be prepared to swear that you will not smoke around the child. In addition, if you have a disability that may put the child in danger, you should be prepared to show that you are willing to have supervised visits in order to keep the child safe.