What are Normal Child Visitation Rights during a Divorce?

How Much Visitation Time is Considered “Normal” or “Average?”

Going through a divorce is a difficult process and this is only made more emotional and more stressful when children are involved. When a couple decides to end their marriage and they have children, they must decide who the primary caregiver will be, how their custody will be shared and/or what their visitation time and schedules will be. In most divorce cases with children, parenting time and the allocation of parental responsibilities (decision making) is the most contentious issue. In the most ideal cases, parents will be able to create their own parenting plan on their own terms or with the help of a mediator outside of the courtroom.

But, some divorces are not that easy and divorcing couples do not see eye to eye on who should have the children. If this is the case, they often are unable to come up with a custody agreement on their own or with mediation. In this situation, the custody agreement is then left up to the family court system and will be decided as part of the couple’s divorce. All family courts and family law judges seek custody agreements that are in the best benefit of the children and not necessarily what the parents desire. Because of this, it is essential that a parent that is seeking primary custody or equal parenting time ensures that their decisions are always in the child’s best interests.

Different Types of Custody Arrangements

Depending on the circumstances surround the divorce, there are a number of different types of child custody In some states, this may be called “Allocation of Parental Responsibility” or “Decision Making.” The parents or parents can fight for or that will be awarded by the judge:

• Legal Custody: (also called Allocation of Parental Responsibility) The ability of the parent to make decisions about the children’s lives including schooling, medical, religion, and general upbringing. This does not necessarily mean the parent has physical custody or the majority of the parenting time.
• Sole Physical/Full Custody: Custody where one parent is the primary caregiver and has the children the majority if not all of the time. In some states, this might be called “majority of parenting time.”
• Joint Physical Custody: Where both parents share the caregiving responsibilities and custody of the children. Joint physical custody or time with the children is generally split 50/50 between parents.

Full Custody/Visitation Agreements

Family law judges will always do their best to have both parents included in the children’s lives and will strive for the parents to have shared custody. In fact, in many states, the laws (statutes) have been rewritten in such a way as to have each custody case start from the initial standpoint that each parent should have equal parenting time and equal decision making ability. It would then be on either parent to show the court why he or she should have more decision making ability or more parenting time with the kids than the other parent.  Although this is the goal, it is not always feasible for this type of arrangement to work. Instead, the judge will sometimes award one parent primary physical custody of the children and grant the other parent visitation rights. Both parents would have parenting time and possibly even equal decision making abilities, but one parent would be awarded the majority of the parenting time. In some states, the parent who has the children the majority of the time is known as the “custodial parent” and the other the “non-custodial parent.”

Both joint custody agreements and primary custody agreements with visitation (parenting time) do offer some flexibility. Regardless of the agreement that is awarded, the ultimate goal is to allow each parent to spend one on one time with the children. When joint custody is awarded, the court will often task the parents on deciding the schedule, encouraging them to take into account their personal work schedules, distance between residents, the children’s schooling and activities and, of course, the children’s well-being.

There is also flexibility with sole-custody agreements or primary custody agreements. The judge will again ask the parents to set a visitation schedule that works for their personal schedules as well as the children’s schedules. Some visitations with the non-custodial parent include weekends, every other weekend, certain holidays and/or special events, and activities. The court will encourage the parents to work together and be flexible with these schedules in order to provide the children with equal time.

Fixed Visitation Agreements

In some cases, having the judge outline the agreement allows the parents to be able to work together to make their own schedule – this is the ideal outcome for the family court system. But, in some cases, the parents are still unable to agree on when they should receive time with the children. This is when the court will pass a judgment for a fixed visitation plan. A fixed visitation plan means that the parents must follow a specific schedule of what parent has the children at what time without any flexibility unless the parents agree to some change, usually on a temporary basis in writing and approved by each parent.

Supervised Visitation

In the most severe of custody cases, one of the parents may be considered incompetent to care for the children or may be considered a threat or danger to the children’s welfare. In these cases, although the parent still has rights to visit with their children, those visits will have to be supervised by a third party. This individual is most often a counselor, therapist, or child services employee. These types of visits allow the parent to spend time with the children without putting the children’s well-being in jeopardy. Many times this is done when a parent has been absent for a long time (a year or more) and is looking to re-establish their relationship with their kids. This might be done through a process called “reunification therapy”, where a counselor meets with the kids and the parent that is hoping to reconnect so that everyone can feel comfortable and safe and have a meaningful discussion in a therapeutic setting.

Considerations When Setting Child Custody and Visitations

When the court makes a decision on the custody arrangement for the children and what the visitation schedule will be, they will take a number of factors into consideration:

• Testimony of the Involved Parties
• Testimony of the Children (Depending on Age)
• Parent Serving as Primary Custodian to Date
• Criminal Backgrounds of Both Parents
• Testimony from Therapists, Counselors or Child Services Individuals Involved

Example of Child Visitation Time

In a standard child custody case, where the parents cannot come up with their own parenting plan, the judge will generally award one parent (the majority of the time the mother – but not always!) primary custody of the children and grant the father visitation rights. Most states follow the same model for awarding the father visitation time – the father should be allowed a reasonable amount of parenting time. It could be every other weekend and every Wednesday night, or it could be something completely different. This parenting time can be scheduled in a variety of ways, based on what works for both parents as well as the children’s schooling and other activities. Remember – parenting time is not based on what a parent wants (necessarily), it is based on what is best for the kids involved.

Changing a Visitation Agreement

It is possible, over the course of time, for parents to want to make changes to their child custody or visitation agreement. Those couples who created their own parenting plan outside of court often do not have to have small changes approved by the family court judge. But, for those couples who have had their visitation agreement created by a family court, any changes to the agreement will need to be presented to and approved by the judge before they can take place. These changes most often happen when one parent’s work schedule changes, if one parent moves, or if one parent is not cooperating with the child visitation agreement, either not allowing the visits to occur or not attending the visits. A modification of custody or a modification of parenting time schedule might mean that the parents first have to seek mediation in an attempt to resolve their differences. If mediation fails, they can then file a motion and seek court intervention.

Third Party Custody Agreements

In some serious divorce or child custody cases, a third party individual or individuals will seek custody of the children in question. This is usually only considered when the third party has had custody of the children to date or both parents are found to be unfit to care for them. While it is possible for third parties to have custody awarded, some states carry what is called a “parental rights doctrine.” This means that, if one or both of the biological parents wishes to have custody of the children, their rights are paramount or taken into more serious considerations than those third party members seeking custody. Most of the time this ends up being a grandparent or other relative of the children. But it is also possible that it could be a step-parent, depending on the circumstances.

Parenting Schedule Help

Having a consistent schedule is important for children’s mental and emotionally well-being, especially for those who are now becoming part of a divorced family and making large transitions in their little lives. Some couples will seek the assistance of a child visitation lawyer to help them determine a proper schedule. The goal of most custody lawyers is to find a solution that can help one or both parents establish a visitation schedule that is fair and honors the rights of both the custodial and non-custodial parent.