When a court determines the visitation rights of a noncustodial parent, it usually orders visitation at reasonable times and places, leaving it to the parents to work out a more precise schedule. Reasonable visitation allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times and duration of visits. He or she isn't legally obligated to agree to any particular schedule.
For the reasonable visitation approach to succeed, the parents must cooperate and communicate with each other frequently. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule (see below) and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed.(back to top)
Sometimes courts ordering custody and visitation for children set up schedules, including the times and places for visitation with the noncustodial parent, such as every other weekend or Tuesday and Thursday evenings. A court will be inclined to order a fixed schedule especially if the hostility between the parents is so severe that the constant contact between them may be of detriment to the child.(back to top)
My ex-spouse was physically abusive to me and the children. How can abuse be prevented during visits with the children?
When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised. This means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed upon by the parents or appointed by the court. No matter how the adult is chosen, he must be approved by the court ordering the supervised visitation.(back to top)
This has been a hot issue since President Clinton signed into law the Visitation Rights Enforcement Act in November 1998. And it's still not over even though the United States Supreme Court recently handed down its decision in Troxel v. Granville, No. 99-138 (Jun 5., 2000) a controversial case from the state of Washington. Parents and grandparents alike should understand what rights exist today -- and how they may change as a result of the Supreme Court's recent decision.
The Visitation Rights Enforcement Act amended title 28 of the U.S. Code dealing with enforcement of child custody and visitation orders. The law says that grandparents who have already been granted visitation rights in one state can exercise their rights in another state. The courts of any state in which the children live must respect, or reciprocate, the visitation rights granted in the original state. It's important to understand that this law doesn't create an absolute right to grandparent visitation. That right must be initially established by a state court, based on a judge's determination that the grandparents are fit to visit the child and that visitation is in the child's best interests.
The U.S. Supreme Court took up the matter of grandparent visitation when it agreed to hear the Troxel case. In 1998, Washington's Supreme Court ruled that requiring grandparent visitation violates parents' fundamental rights to raise their families without government interference. (The Supreme Courts of Georgia and Florida have handed down similar rulings.) The U.S. Supremes decided that while the Washington statute wasn't exactly unconstitutional, parents have a "fundamental right" to control their child's upbringing. This includes deciding how often and when grandma and grandpa get to visit. From now on, in states like Washington, Florida, and Georgia, judges will rarely be permitted to interfere with a fit parent's decision regarding grandparent visitation.
Here are some suggestions for parents and grandparents who find themselves arguing in court about visitation:
Parents. If your child's grandparents (whether they are your own parents or your ex-partner's) take you to court, it's best to arrive with a proposed visitation schedule in hand. It's likely that the grandparents will receive some form of visitation, and it's better to have your own wishes enforced than to have a judge set the schedule. It's reasonable to offer between one and three afternoons a month for a few hours at a time. This could be for lunch and a movie or a play session at the local park. If you and your child don't know the grandparents very well, you can ask the court to allow visitation to occur in your presence. If the grandparents live in another state, visitation over an entire weekend may be considered.
Grandparents. If you are the grandparent petitioning for visitation, be prepared to testify about your relationship with your grandchildren, your relationship with the parents, any custody or visitation arrangements you had before the court action, and the last time you saw your grandchildren. Also, be prepared to discuss your personal history, including any medical troubles or problems with the law. Remember that the court is scrutinizing you to decide whether you should spend time with a child -- and the judge won't hesitate to pry into personal matters. For example, if you're a chain smoker, you may be asked to refrain from smoking in the child's presence. If you don't, the parent may ask the court to discontinue your visitation. If you cannot, for health reasons, perform some tasks independently or correctly, your visitation may be supervised. This doesn't mean the court is prejudiced against you. You face standards similar to those faced by a noncustodial parent seeking visitation: The children's welfare is always given the highest priority. But now, with the Supreme Court's decision in Troxel, judges will also give greater deference to a parent's decision to limit grandparent visitation.(back to top)