Visitation Rights

What is a Visitation Exchange?

A visitation exchange takes place every time a child goes from the physical custody of one parent to the other. In cases where both parents are able to set aside their personal differences for the sake of the child, there is usually no problem with the visitation exchange - one parent simply goes to the residence of the other to pick up the child.

Visitation exchanges become problematic when the personal differences between the parents are not settled. In the extreme, a domestic violence case makes the visitation exchanged difficult to handle, especially when restraining orders are in effect (such as an order that both parents are to stay at least 100 yards away from one another and may not go to the residence of the other). In these difficult cases, visitation exchanges can be conducted in a public place - a restaurant where one parent can sit in the back and then send the child to the front, in a local police station, hospital or library - places where there are a lot of people around who would notice if an argument between the parents erupted.

In extreme cases, one parent would leave the child with a visitation supervision monitor and the other parent would arrive 15 minutes later, the visitation would proceed under the supervision of the third-party monitor, and then the visiting parent would leave 15 minutes before the other parent returns to pick-up the child. Creative visitation exchanges are sometimes necessary to allow visitation while keeping separation between the parents to reduce the possibility for violence between them.

If Child Support is Not Paid, Must Visitation Be Allowed?

Yes. The issues of child visitation and child support are separate issues.

Failure to pay child support is typically insufficient grounds to stop the right of the non-custodial parent to visitation with his/her child. Visitation is typically ordered by a court in the best interest of the child to promote love and affection with both parents - custodial and non-custodial alike. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be maintained or established. On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for the child's financial needs. Thus it is typically treated as a separate issue, the failure of one not having a determinative effect upon the other.

The custodial parent must continue to allow visitation with the child despite failure of the non-custodial parent to pay child support. Although this may be very frustrating to some, if the custodial parent "frustrates" the right of the non-custodial parent to visit with the child, the non-custodial parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.

What Happens When Visitation Rights are Frustrated?

Frustration of visitation occurs when the custodial parent takes steps to prevent the non-custodial parent from having contact with the child. This could be an innocent isolated occurrence, such as taking a child to a doctor to receive medical attention at the time the non-custodial parent is to arrive at the residence to pick-up the child for a scheduled visit. On the other end of the spectrum, when one parent "disappears" with the child, this could be a kidnapping or abduction which would result in criminal prosecution.

Frustration of visitation could be the grounds for modification of or termination of custody rights.

Can Visitation Be Denied to a Non-Custodial Parent?

Yes, but this occurs only in extreme cases. When one parent has abused or neglected a child, placed the child in dangerous situations, threatened removal of the child from the state, or abuses alcohol or illicit drugs, this parent's right of visitation can be denied and the other parent awarded sole legal custody and sole physical custody. Denial of visitation is not the norm and strong evidence must be presented in a court hearing to deny a parent from having any visitation rights.

In less extreme cases, visitation could be allowed but subject to certain restrictions. For example, a court order an alcoholic or drug addicted parent to refrain from use of alcohol or illicit drugs in the presence of the child and submit to regular alcohol and drug tests to show that s/her is "clean." A parent who has been accused of neglecting a child in the past or threatening to take the child away from the other parent may have visitation restricted on the basis that it take place only when supervised by a qualified third-party (so called "supervised visitation"). Supervised visitation is preferred to denial of visitation on the basis that there is a strong public policy to promote continuing and frequent contact between the child and both parents -having the visit supervised is better than completely denying the non-custodial parent the ability to spend time with his/her child.

Do Grandparents Have Visitation Rights?

The simple answer is "yes, but". The "but" is due to the limitations under which grandparent visitation can be ordered by a court. Grandparents typically may join an action between the parents, or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren.

The problem is that the grandparent may have to prove to the court that harm will occur to the grandchild in the absence of visitation. Since it is typically viewed that parents have a fundamental right to the care, custody and management of their child, only a compelling interest would be sufficient to allow a state (via its courts) to interfere with the parent's right to raise his/her child without such interference. This may be difficult to prove, since the grandparent has the obligation to prove that harm will result to the child's health and welfare should the court not order the parents to allow visitation with the grandparent. This is a difficult burden of proof to sustain.

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