Determining and Awarding Visitation Rights- Module 3 of 5

Module 3: Determining and Awarding Visitation Rights 

If a court awards one parent sole physical and legal custody of a child, it will typically award the non-custodial parent “visitation rights.”[1] Visitation refers to any period of time a non-custodial parent spends with his child.[2] Visitation rights are encouraged by public policy because they encourage and support the involvement of both parents in raising the child and because they ensure that the child maintains a close relationship with her non-custodial parent.

In this module, we’ll discuss child visitation, delving into the history of child visitation, the “types” of visitation, the current standards for determining and awarding visitation and issues related to third-party visitation.

Visitation Overview

In the nineteenth century, courts regularly granted non-custodial parent visitation rights, sometimes called “access” rights. Such rights were designed to equitably resolve the parents’ competing rights to the child. A typical visitation order would grant the non-custodial parent a right to visit the child “at all reasonable times,” which were flexible, and the non-custodial parent would select the days and hours for visitation. Early American family law courts also had wide discretion to deny the non-custodial parent visitation to protect a child from “moral harm.” For example, early American cases reveal that courts would deny visitation rights if it found that a parent was guilty of adultery and would often refuse to grant visitation rights to the father of a child born out of wedlock.[3] 

Modern courts view visitation as a more ingrained right. Section 407(a) of the Uniform Marriage and Divorce Act specifies that a “parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.”[4] While many states have adopted this model act, visitation remains an issue of state law, and policies and cases can and do vary between states. 

States that have adopted this model act offer “reasonable” visitation and the preference is usually that parents will work out the details amongst themselves. A court will often urge divorcing parents to develop a parenting plan that will stipulate how visitation will be carried out. California, for example, offers divorcing spouses a comprehensive website with suggestions on how a parenting plan can tackle visitation rights. California recommends that parents address the following points in a specific visitation agreement:[5] 

·       specific dates and times for visitation;

·       pick-up and drop-off locations and times;

·       how the custodial and non-custodial parent will exchange children; and

·       visitation rights for birthdays, special occasions, and holidays. 

Forms of Visitation

Visitation can take three forms. The first is open, or unstructured, visitation.[6] Open visitation is flexible and is sometimes known as “reasonable visitation” or “visitation by mutual consent.” Here, the parents work together to determine a reasonable, liberal, and flexible schedule to allow the non-custodial parent to see the child. For example, the non-custodial parent can stop by the custodial parent’s home to visit her child on Monday and Tuesday evenings one week, and Thursday and Friday afternoons the following week. Unstructured visitation’s drawback is that it’s difficult to maintain unless the parents have a cooperative relationship. It is often hard for divorcing or estranged parents to cooperate to this extent.

For this reason, most parents opt for the second type of visitation, structured visitation. Here, parents agree on visitation on pre-ordained days and times for the non-custodial parent.[7] These scheduled can be as intricate and specific as the parents can agree to. An example of a structured visitation schedule might be: 

“The father shall have visitation:

i) On every other weekend from 5:00 PM Friday until 5:00 PM Sunday;

ii) On December 25 at 12:00 PM until December 30 at 6:00 PM, every year;

iii) On alternating Thanksgiving and Easter holidays;

iv) Four weeks in the summer if notice is given to mother not later than April;

v) Father's Day annually regardless of whether it is his weekend to visit.[8]

Finally, we must look at virtual visitation, referred to as “the next generation of options for parent-child communication.”[9] Here, a non-custodial parent and his children engage in activities together over the Internet in real time, using interactive video technology such as FaceTime, Google Hangouts or Skype.[10] Courts have ordered virtual visitation most often when the custodial parent lives in another state or city and long distances between parents require creative solutions to make shared custody arrangements doable.[11]

Limiting and Denying Visitation Rights 

Should parents be unable to come up with a solution themselves, judicial intervention may be necessary to create a visitation schedule. Like other issues in child custody, the best interest of the child standard guides visitation rights. 

Courts will try to avoid imposing severe restrictions on a non-custodial parent’s visitation rights because it’s not in the child’s best interest for her to have a restrained relationship with one parent. In Mann v. Mann, an Alabama family court strictly regulated a father’s visitation to the point that on his visitation days he was required to drive two hours each way to visit his children at his brother’s home and was required to take his children to a specific church for services and Sunday school, requiring him to drive four hours round trip during each such visitation.[12] A state appellate court invalidated these restrictions, finding that they weren’t reasonable and that being in a car for such long periods of time wasn’t in the children’s best interest. 

Though a court can’t go overboard in restricting visitation rights, it can place reasonable constraints on visitation rights. One commonly-employed constraint when dealing with a parent whose behavior indicates that he might be a threat to the child is to require supervised visitations. Supervised visitation is often required when the child is “traumatized, which means a child who has been abused or neglected, exposed to intimate partner violence, lived with a mentally ill parent, or has been abducted by a non-custodial parent in the past. [13] 

When supervision is required, the custodial parent can take the child to a professionally-organized facility, like a government agency or a local YMCA, equipped to monitor the visitation. The non-custodial parent may visit with the child for several hours and the custodial parent can then return to pick the child up.[14]  Alternatively, supervised visitation can take place in a less formal setting, such as the home of a friend or relative whom both parents trust. Like most other aspects of custody and visitation, agreement between the parents on supervision is preferred, though judicial intervention may be necessary when the parents cannot agree. 

Factors Considered by Courts

State statutes typically limit a court’s power to deny a non-custodial parent visitation rights because such rights are considered in every child’s best interests. The type of showing required to defeat a parent’s right to visitation varies from state to state, but across the country, courts always take certain factors into account. Let’s look at the factors and the analysis a court will undertake before denying visitation rights because they are not in the child’s best interest. 

Physical Violence or Abuse 

The first ground for denial of visitation is if the non-custodial parent has physically abused the child or has threatened the child with physical violence. Some states have enacted provisions in their family law statutes with this language. In Arizona, for example, a court “shall consider evidence of domestic violence as being contrary to the best interests of the child” and if it finds instances of domestic violence, it shall make arrangements for visitation that best protect the child and the abused spouse from further harm. Moreover, in that state, the parent who has physically harmed the child carries the burden of proof that visitation is in the child’s best interest. [15] 

Emotional Harm

A second ground on which a court may deny visitation is that there is potential for the child to suffer emotional harm if there is visitation. Evidence that a child suffers emotionally when visiting the other parent can vary widely, and can include that the child stutters, becomes quiet and reticent when around the other parent or performs poorly in school after the non-custodial parent visits her. Since emotional harm is subject to interpretation and because denial of visitation rights is such a harsh remedy, the claim usually must be supported by testimony from a psychologist, school counselor or other professional who can testify as to the child’s mental health.[16] 

Child’s Wishes

Third, a court may consider the child’s wishes if she’s old and mature enough to express her opinion. State laws don’t provide a precise age of maturity, so this is a case-by-case determination. In the Michigan case, Henshaw v. Henshaw, a 13-year old girl took the stand in a custody dispute and testified, “I don't like to be with my dad because […] a lot of times he just embarrasses me. […] I mean we don't have anything in common and he embarrasses me, and sometimes he criticizes me.”[17] The court found her to be articulate and intelligent enough to clearly express her opinions and took her wishes into account when determining visitation.  

Substance Abuse

Substance abuse, such as the regular abuse of drugs or alcohol is also grounds for limiting or denying visitation if the abuse endangers the child’s welfare. Because a court is hesitant to deny visitation completely, it may instead impose restrictions such as forbidding the parent from consuming alcohol or abusing drugs during visits with children or for a specified time prior to visitation.[18]

Incarceration

Incarceration is not, in itself, cause to deny visitation, but is part of the overall analysis of whether visitation is in a child’s best interest. Visits to incarcerated parents may be carried out by prison visits,online or via phone communications, where possible. In determining whether to order a prison visitation, some courts have looked at points such as the child’s age, the distance to be traveled, the physical and emotional effect on the child, whether the parent had exhibited genuine interest in the child, history of contact and the nature of the crime committed, prior to ordering or denying an incarcerated parent’s visitation rights.[19] 

Religion    

Religion is a thorny issue in child visitation. Under the First Amendment’s “free exercise of religion” clause, it would be unconstitutional for a court to deny a non-custodial parent visitation rights because of religious practices, but it can limit or impose restrictions on visitation if there’s a clear showing that conflicting religious practices affect the child’s welfare. In the New York case, Mathews v. Mathews, for example, evidence revealed that when he was visiting his kids, the non-custodial parent frequently disparaged the mother in the children's presence, and consistently used his religion to attempt to alienate the mother from the children.[20] Here, such behavior during visits was detrimental to the children’s growth and well-being, so the court could deny or limit access to his children.[21] 

Child Support 

Finally, let’s look at child support as a factor in a visitation rights decision. State laws often provide that failure to pay child support does not inherently affect rights to visitation.[22] Furthermore, a parent cannot condition visitation on the other parent’s payment of child support and if one parent withholds support, the other parent may not deny visitation as retaliation. 

Some state courts make exceptions for willful and intentional failure to pay child support. In Turner v. Turner, a Tennessee court stated that child custody and visitation decisions should be guided by the best interests of the child and are not intended to be punitive. The court stated that a denial of visitation should only occur when a financially able parent refuses to do so. [23]  

Third Party Visitation

 At common law, nonparents, including grandparents, had no right to visitation.[24] Starting in the 1960s, some states have enacted statutes allowing grandparents the right to petition for visitation.[25] By 1993, every state had enacted a statute to allow visitation by nonparents under some circumstances.[26] 

However, in the landmark Supreme Court decision Troxel v. Granville, the Court reviewed a broad Washington state statute that allowed a court to order visitation between a child and any person on a showing that such visitation would be in the child’s best interests. In that case, it was the parent of a non-custodial parent (the child’s grandparent) who had successfully petitioned for visitation over the objection of the custodial mother. 

The Court found that the statute violated the mother’s “substantive due process” by denying her the right to make decisions concerning the care, custody and control of her child. It didn’t declare all third-party visitation statutes unconstitutional but did rule unconstitutional those that placed nonparents on par with parents.[27] Due to the decision in Troxel, a court may not award a grandparent or other third-party visitation based solely on a judge’s determination of the child’s best interests when the determination conflicts with a decision by a fit custodial parent concerning visitation. 

Post-Troxel, third party visitation laws cannot create substantive or absolute rights of visitation for nonparents; rather, the laws establish the procedures that a nonparent must follow to apply to the court for visitation. 

In the wake of the Troxel decision, three other things happened. First, some states amended their third-party visitation statutes to require courts to give at least some special consideration to a custodial parent’s rights. Second, many states revised their visitation statutes to limit the people who could seek visitation and to give deference to a fit parent’s wishes. Third, amendments to statutes began requiring grandparents to demonstrate a significant prior relationship with the child to obtain visitation rights. Most states apply the best interest of the child standard in grandparent visitation disputes, however, some jurisdictions adopt the more stringent harm standard, which allows visitation only when it can be demonstrated that a lack of visitation would result in harm or potential harm to the child.

In our next module, we’ll consider issues and commonly-encountered problems with modification and enforcement of custody and visitation orders.