Custody and Child Support

The correlative rights of noncustodial parents are those of visitation. Visitation rights may also be judicially granted to others affected by the custody award, such as grandparents, relatives, siblings, and persons having a significant interest in the welfare of the child, such as a non-biological, foster or adoptive parent. This is true even where the parents object to the visitation as interfering with their right to raise their children as they see fit. Moreover, many states have expressly created language granting visitation rights to otherwise fit, biological fathers (but unwed parents) of children, whether or not the biological mother has since seen the father. The implication of the U.S. Supreme Court case of Vanderlaan v. Vanderlaan is that in any circumstance where the father, mother and child have lived in a de facto (actual, if not officially recognized) family setting, the father has potential visitation rights. Many states go beyond that in granting visitation to estranged or recently-ascertained biological fathers.

There are several classifications of visitation which may be awarded. "Reasonable visitation" allows the parents to create their own visitation schedule, most applicable in non-adversarial divorce cases. The noncustodial parent is allowed to see the child upon "reasonable notice" to the custodial parent. A "fixed-schedule" visitation, or court-scheduled visitation is imposed when there is parental conflict over visitation rights. It must be emphasized that many courts have held that custodial parents have more than a duty to simply let visitation happen according to the court's order. In cases where noncustodial parents assign low priority to meeting fixed-schedule visitations, courts may order that the custodial parent actually deliver the child to the noncustodial parent for purposes of visitation. Such courts reason that until a child is old enough to make his own decisions not to visit with the noncustodial parent, frequent exposure to that parent will facilitate independent development of the child's perception of that parent, as well as insure that the child has had the benefit of emotional and physical development under both parents. However, when a noncustodial parent has a history of violent or destructive behavior, especially toward the child, courts will order "supervised visitation." Such visitation requires that an adult other than the custodial parent be present at all times during the visitation. The adult may be someone agreed upon by the parties, or an independent person appointed by the court, but in all circumstances, the court must approve the particular person chosen. Restricted or supervised visitation may also be ordered when a noncustodial parent has not seen the child for a long time (until he or she can demonstrate ability to care for the child). The same is often ordered where the parent may not impose any direct harm upon the child, but may engage in harmful conduct in the presence of the child, such as with substance abuse, cruelty to animals, or a history of reckless vehicle driving. Again, the operative language in visitation disputes focuses on the "best interests of the child." As with custody decisions, visitation awards and decisions are subject to modification upon petition of a party or other interested person, whenever new evidence or changes in circumstance warrant such review or modification. Again, the court's authority is terminated upon the child reaching the age of majority, or being judicially declared as "emancipated" following marriage of the child, joining the military, etc., but may continue in the presence of a legally-incompetent child.