When you and your spouse separate, one of the most important and emotionally contentious issues you will encounter will be child visitation rights. It is important to remember that your feelings, while important, are not the focus of these decisions. Ultimately, the courts will decide visitation rights based on the best interests of the child. The court will enter these discussions under the assumption that each of you love your child equally and deeply, but the court’s job is to determine under whose roof the child is most benefitted.
Child visitation law governs the rights of non-custodial parents to see their children. Within this law framework, there are several standards that contribute to visitation decisions. The largest and most common contributing standard considered is the “best interests of child” standard.
How to Get Visitation Rights for Your Child
There will be several steps involved in obtaining visitation rights for your child, and many factors will contribute to the steps discussed here. Biological parents always have the right to seek visitation or custody with their child, no matter whether the parents were married or unwed. Based on information presented to the court, judges will determine what is reasonable and fair visitation.
This step may or may not apply to your situation. If you and your partner were not married at the time your child was born, the first step you will need to take is confirming paternity. If neither parent contests paternity, you will each sign and file a statement with the court confirming the fact. If necessary, you may request a DNA test. Once you establish paternity with the court, you may proceed with visitation requests.
Child Visitation Agreements
If you are able, this course of action is likely the best to pursue. Without legal assistance, you and your partner may be able to come to an equitable agreement of custody or visitation. These agreements include primary custody, visitation periods, which parent makes developmental decisions like schooling, and procedures for handling any further disagreements. These amicable agreements are often in everyone’s best interest.
Court Orders for Child Visitation
This final step in visitation law is a court order. Court orders establish legally binding agreements for parents. If you each agree to a visitation plan, you will file this with the court to cement the agreement. If you cannot agree, the court will decide for you based on the best interests of your child in a contested hearing.
After the court order is established, both parents have the right to revisit these discussions at any time. If you find your agreement needs to change, you are welcome to ask the court to assist in making a legal change or you can attempt to agree without the court’s help. You will likely need to notify the court of any modifications in most states. Notifying the court of changes also removes any fear of non-agreed upon changes.
“Best Interests of Child” Standard
Standards of visitation rights are common in every state in the U.S. This standard is concerned with the child’s best interests. The court’s concerns in this standard revolve around the child’s physical, emotional, and developmental welfare. A number of factors concern each facet of this standard. Though these factors are often difficult for the court to determine, the court will try its best to accurately depict the child’s situation through its judgment.
Courts will assume the child is best cared for by both of its parents. However, if evidence is shown to be contrary to that assumption, there may be limits and restrictions placed on visitation rights of one parent. The following sections explain a small number of factors the court will consider when determining custodial arrangements.
This part of the standard concerns the child’s physical wellbeing. Are you able to consistently provide stable housing and nutritious food? How do you discipline your children? Meeting the basic physical needs of your child may be the first concern of the court because a child’s physical wellbeing is the cornerstone of development, affecting their physical growth and emotional wellbeing.
The court will also concern itself with your child’s emotional wellbeing. The court will judge this factor of custody rights based on less obvious factors than physical welfare. Your ability to support your child emotionally may be evaluated. Are you able to talk freely with your child? Do they seek your advice or support in difficult times? Can they come to you with their problems? If so, their emotional wellbeing will appear to be secure with either parent, likely leading to a more equally split custodial agreement.
Your child’s developmental welfare will be evaluated by the court as well. Aspects of this determination include a stable home environment, religious or cultural considerations, and participation in school and community. Questions the court may consider include: Will certain custodial arrangements disrupt the child’s developmental wellbeing? How well can each of the parents sustain the child’s current development? If the answers are affirmative for each parent, this will again lead to a more equal split of time with the child.
Child Support and Visitation Rights
Child support is an obligation, while visitation is a legal right. The distinction here means that child support does not guarantee visitation. However, being behind on child support does not negate your right to see your child, as agreed upon by yourselves and the court. If the parent paying child support has not lost visitation rights, then those rights remain intact.
The parent with main custody of the child does have the right to take a lack of child support to court. In this case, it is possible to lose visitation rights. This decision will be made by the court, though, and not by the parent.
Securing Visitation Rights
Ultimately, it is advisable to always have legal documents available to support any agreement the two of you make. Even in amicable splits, these issues are emotional at the core, and to best protect your child, maintain your visitation and custodial agreements to ensure few problems.