Last Updated on July 1, 2022 @ 4:22 pm

Fathers Divorce Rights

The amount of overnight parenting time a father should expect as well as other child custody related decisions are made on a case-by-case basis by a family court judge, absent an agreement between the parents. The best interests of the child is a standard by which judges in a divorce or paternity case will use to determine which parent will receive custody, parenting time, primary or shared decision making, and the allocation of parental responsibilities. Fathers who are not granted primary custody or primary decision making may still receive significant visitation and parenting time and this could include having children stay overnight. This leads fathers to wonder how much overnight visitation and parenting time they should expect to receive.

Determining Overnight Parenting Time

A judge considers a variety of factors when hearing a child custody case, which will determine decision making for the child, parenting time, and the amount of overnight parenting time each parent should have with their child. If primary custody (the majority of parenting time) is awarded to the mother, the father is entitled to a reasonable amount of visitation (parenting time). Parents should try to work out the overnight visitation and parenting time schedule but if they cannot do so, the court will determine it. A father’s visitation rights and overnight parenting time should be determined based on what the court decides is in the best interests of the child.

The best interests of the child standard involves a variety of factors, such as:

  • the wishes of the child, (if the child is mature enough to voice a reasonable opinion);
  • the stability each parents living environment;
  • the relationship between the child and both parents and between the parents themselves (can the parents cooperate and get along to do what’s best for their child);
  • the physical health and mental health of each parent;
  • adjustments to the child’s home, school, and his/her community;
  • the level of each parent’s participation in past significant decision-making with respect to the child or any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
  • relationships between members of each parents household and the child;
  • whether there is any allegations of domestic violence or mental/physical abuse by a parent; and
  • other relevant factors.

Many of these factors (above) are self-explanatory. But it must be understood that, because every case is different, (and every judge is different, too), that no single factor will necessarily be the one that decides the case. multiple factors will be taken into account and weighted differently, depending on the facts of each individual case (example: the wishes of the child factor is rarely given substantial weight).

Which Factors (Best Interests of the Child) Affect Overnight Visitation?

Technically, all of them can have a significant impact on a father’s rights to overnight visitation and parenting time. that being said, factors such as the stability of each parents living arrangement and the adjustments to the child’s school and his/her community are typically important factors when it comes to a father’s fight for overnight visitation and parenting time.

Stability is always important – a parent who has moved multiple times (maybe every year or two) is far from stable and constantly uprooting a child from their home, neighbors, and friends (and maybe even their school district) can be extremely disruptive to a child. A father who has and continues to live in the same home (maybe a home he purchased) shows the court that his living arrangements are solid and he has and continues to develop roots in the community and his neighborhood.

The best interests of the child factor dealing with the adjustments to the child’s school and his/her community tie into the stability of each parents living arrangement. Even if a child will continue to attend the same school, if a parent moves far away from the school/neighborhood, there might be other issues that now make a father’s overnight visitation time difficult to exercise. When a parent moves, say, 40-minutes away (or farther) from the child’s school, it might now be an issue either picking the child up on-time from school each day or dropping the child off to school in the morning. No judge thinks it is good for a child to sit in the car for an hour+ long commute to start the school day. This will absolutely be a big factor in determining whether a fathers overnight visitation should include parenting time on school nights.

Knowing how the facts and circumstances of your case will be applied against these factors will help a father make the best possible decisions on his living, working, and social life to show the court that overnight parenting time should be awarded to the dad. It is probably necessary for a father to make life changes to ensure that he can show the court that he has a stable home environment, lives reasonably close to the child’s school, is involved in the child’s education and extracurricular activities, and is involved in the child’s medical decisions (know your child’s doctor!). This needs to be done immediately, preferably even before a case is filed. Father’s fighting for overnight parenting time need to make a great first impression (and continue it).

Following the Parenting Plan

Mothers who might be granted primary custody or primary parenting time are not permitted to withhold visitation and deny parenting time with the fathers of their children when a court order has been entered. This could subject the mother to being held in contempt of court for violating the court order. If a court order for parenting time or parenting plan is not entered by a judge yet but an informal parenting plan is being followed by both parents instead, a father needs to act quickly when he is denied parenting time with his child. Waiting too long to fight for overnight parenting time (or any visitation, for that matter), can seriously damage a father’s case. the court might look at the father as if seeing his child isn’t his top priority when it needs to be made clear that the father immediately took steps to spend time with his child.

Whether a parenting plan has been entered by a judge or an informal plan is being followed between the parents, a father needs to make sure that he is reliable and must keep some type of notes and proof that he is reliable (such as text messages or emails showing he picked up the child on time, was available to pick the child up for an emergency, etc.). Reliability is essential and relates to one of the most important factors found within the best interests of the child standard – stability and also cooperation.

Dealing with a Negative Past

No parent is perfect, and no judge expects a parent to be perfect, but sometimes past events need to be fixed or steps need to be taken to show that the negative things from the past are just that: the past only.  It is important to note that previous or even current incarceration will not automatically restrict visitation or destroy a father’s attempt to gain significant overnight parenting time. However, fathers with a history of violence or substance abuse may be subject to supervised visitation and it is important for a father with an issue like this to take it head on. A father should attend therapy or join a support group to show that he has fixed the mistakes of the past and is a better person now than he was in the past. A court will require a social worker or other third party to be present when fathers with certain issues in the past visit with their children if steps aren’t taken to show he has it under control and that the negative past will not become a negative future.

Normal Amount of Overnight Visitation or Parenting Time

There is no universal amount of visitation, whether it is overnight parenting time or during the day, that a father will receive in a custody case. Virtually every state is changing the way their laws (statutes) are written to state that both a mother and a father have the same right to be with their children (from an initial standpoint, at least). But many judges are old-school and every person alive has some type of internal bias for or against a father. Every outcome is unique and based on the personal dynamics of the family unit. There is no reason why a father should not have the same rights as a mother when it comes to overnight parenting time, but a father typically does need to work harder to get these rights. Tell the judge, your lawyer, and the mother of your child that you want equal overnight parenting time with your child. A typical 50/50 parenting plan might be alternating Sunday evenings, and the parent without the kids sees them after school until 30-minutes before bedtime on Wednesdays, for example (to ensure a whole week doesn’t go by without seeing the kids). Don’t give up the fight because it seems impossible – it usually isn’t!

Don’t Do It Alone

We’re talking about your kids – not a car in the driveway or who gets the new flat screen tv. You only get one chance at this (at least, for a handful of years before anything should be modified). Father’s cannot afford to screw up their chances to win significant overnight parenting time with their kids. Child custody laws are complicated and most parents do not understand the relevant guidelines or legal terminology. Only experienced family law attorneys that have specifically dedicated their careers to to family law and understanding these complex rules and laws should be fighting on your behalf. A “general practice lawyer” who handles some family law cases, and a variety of other types of cases is not what you want to fight for your kids. you need a professional who lives and breathes father’s rights on your side. Make sure sure you have your life in order and fight for the overnight parenting time you and your child deserve.

Get your Free Father’s Rights Evaluation Now!

1 thought on “The Amount Of Overnight Visitation A Divorcing Father Should Expect”

  1. I am the single father of a 10 year old daughter, I have spent countless efforts trying to get full custody from the state of Maine, I have been fighting since she was 2, prior to that while living in Maine she was with me almost daily and very much a part of our large family. I moved to NC for better opportunity as I was a 17 year old father, since her birth I have become a professional IT tech and her mother turned to bad things and left her in the care of a 60 plus year old ladies care, the lady runs a high risk foster home, my daughter has been sexualy violated twice, this is uncontested we have been to court, I have NEVER been in any trouble and am clean cut. The lady filed for Defacto Parent how she got that was amazing since the child was NEVER abandonded by me or my family. I cannot see her unless I travel to Maine and they lady that has her is no relation her mother lives 3 hours away and is not allowed to see her . My daughter wants to live with us. She has emotinial issues about abandoment, she knows her famiy in NC and lived with us about a year before the court system in Maine mandated she be returned to the lady that had filed for Defacto Parent. They lady has proven not to be able to keep her safe and is to aged to care for a young pre-teen girl. My attorney is hoping to get back to court as now she refuses to allow mental help for her, the lady belongs to a church and is so controling of my child she is not allowed to do much of anything that is not within the church’s boundary. We offered a expense free trip to my daughter for a week to Disney World a large number of the family (15) were going for a birthday event had rooms at Disney resort. She refused to allow her to come and because the courts in Maine only allow visits within the states confine we could not force her to come. They lady is fearful she will talk so keeps her confined, DHHS has been out there but give days notice before doing a walk though so that is not helpful. We are at a loss of where to turn . My feelings are the woman keeps my child for food stamps and state health. She lives in Mars Hill, Maine in a tiny town where drugs are ramant and poverty is severe, no opportunities for young people a border town to Canada. Any thoughts anyone has would be appreciated. The law has let us down and my young daughter is living a bad life and the courts have it WRONG.

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