Visitation Rights

In a DIVORCE or custody action, permission granted by the court to a noncustodial parent to visit his or her child or children. Custody may also refer to visitation rights extended to grandparents.

In a divorce where one parent is awarded sole custody of the child, the noncustodial parent is usually awarded visitation rights in the divorce decree. Visitation rights can be withheld if evidence is provided that proves it is in the best interest of the child not to see the parent. This usually occurs only where it has been shown that the parent is an excessive user of alcohol, a user of illegal narcotics, or is physically or verbally abusive. With the large number of divorced parents in the United States, grandparents have lobbied successfully for laws that give them rights to visit their grandchildren. However, the U.S. Supreme Court has voiced concerns about such laws and ruled one such statute unconstitutional in 2000.

Visitation rights may be determined by the agreement of the parties or by a court order. If the court concludes that the parents will be cooperative, it may not issue a detailed visitation schedule. This means that parents must amicably work out reasonable times and terms that work best for both parents and child. If parents are not cooperative, the courts encourage the drafting of a detailed schedule that leaves no doubt about the frequency of visitation, the days and times of pickup and return, and holiday and vacation schedules.

Courts generally consider the wishes of the child when reviewing custody and visitation issues. A child's wish may be granted but it will be dependent on the child's age and maturity level, as well as what the court concludes is in the child's best interests. Courts also take into consideration the fact that the custodial parent may exert UNDUE INFLUENCE over the child's decision-making process and color the child's supposedly independent request. As children mature they may seek an order from the court changing custody and visitation arrangements.

A common problem in FAMILY LAW is when one parent uses visitation to spite the other parent. Examples include a custodial parent refusing visitation, not having the child available for the noncustodial parent at the appointed time for pickup, or a noncustodial parent not returning the child at the prescribed time. When a noncustodial parent encounters problems in exercising visitation rights, the parent may stop paying CHILD SUPPORT as a means of changing the custodial parent's behavior. However, the courts do not recognize this as a valid reason for withholding support, as visitation and support are separate and discrete issues. These circumstances, if persistent, sometimes lead the parents back into court for resolution of the problems.

When a substantial change in conduct or circumstances involving the parents occurs, the court may make permanent modifications in visitation rights. One of the parties must present clear evidence to the court of the change in conduct or circumstances. This evidence usually must be completely new to the court, as issues addressed in prior proceedings are generally not grounds for modification. Common grounds for permanent modifications include a persistent failure to follow the visitation schedule, repeated failure to return the child at the designated time, the teaching of immoral or illegal acts to the child, or the parent's conviction for a crime.

Visitation rights may also extend beyond parents. Every state has recognized grandparents' visitation rights in some form by amending visitation statutes. Several states limit visitation to cases where the parent is deceased, while others extend the right to cases of divorce, ANNULMENT, or separation. Such laws have come under attack by parents, who argue that giving grandparents visitation rights infringes on their right to raise their children as they see fit. The U.S. Supreme Court, in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), held that the state of Washington's grandparent visitation statute violated the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT, as it interfered with the rights of parents to make decisions concerning the care, custody, and control of their children. The statute permitted "any person" at "any time" to petition a state family court for visitation rights whenever "visitation may serve the best interest of the child."

Most states hold that the ongoing family is not subject to enforced intrusion by grandparents, if both parents are fit and object. A majority of states also hold that any ADOPTION preempts visitation by the natural grandparents and that grandparents generally have no right to intervene in an adoption proceeding involving their grandchild.