When parents divorce, either they or the judge must decide how to allocate parental rights and responsibility (child custody and visitation.) There are typically two types of custody: legal and physical. Legal custody determines which parent (or parents) can make decisions regarding the child's welfare. Physical custody determines where the child will primarily reside and which parent will take care of the child on a daily basis.
The court can award sole custody to one or both parents. Common types of custody arrangements may include:
The court encourages parents to work together to create a custody plan that works for everyone in the family. After all, you know your family dynamic better than a judge. If parents can't agree, the court will begin a custody investigation to determine what arrangement is in the child's best interest.
If the court awards sole physical custody to one parent, the judge will award visitation rights to the other (noncustodial) parent and the child. In nearly every state, the law presumes that it's in the child's best interest to have a meaningful and continuing relationship with both parents. Additionally, the law recognizes that visitation with each parent is a child's right. Absent extraordinary circumstances, the court will award a noncustodial parent visitation with the child. The court may award reasonable, supervised, or unsupervised visitation.
When a judge orders "reasonable visitation," the custody order won't spell out each parent's time with the child. Instead, it's up to the parents to decide an appropriate schedule for visits. What constitutes "reasonable visitation" varies from case to case and state to state.
If one parent receives "reasonable visitation" in a custody order, the parties will have a lot of leeway in determining what's reasonable, including times, dates, and frequency of visitation. However, a visitation order without a set visitation schedule can be unpredictable and, at times, inconvenient.
One parent's reasonable visitation may be occasional day visits for an infant child, with rare overnights. In cases involving older children, a noncustodial parent (parent without primary physical custody) may have longer visits that involve overnights.
You should only include reasonable visitation in your custody order if you and the child's other parent can communicate well and do not have outstanding issues with each other. If you can't agree on when you and the child should spend time together, the courts will defer to the custodial parent until the court orders otherwise. In other words, if you and your ex-partner don't agree on the weekends or holidays you'll get to spend with your child, you'll need to file a formal motion asking the court to decide for you.
Judges reserve supervised visitation for cases where the court finds that it's not in the child's best interest to spend time alone with the child. Courts will provide a specific schedule for the noncustodial parent, where that parent will spend time with the child at a court-sanctioned facility with an approved third-party supervisor. In some cases, the judge will allow the families to choose a supervisor, like friends or family members. The parent and child can visit at the family member's home or another approved location.
The court takes a noncustodial parent's right to time with a child very seriously and will only limit a parent's time with the child if circumstances call for it. For example, if a parent has a history of drug or alcohol abuse, the court may require the parent to take a drug test before seeing the child.
Supervised visitation isn't always permanent. Judges may place conditions in the custody order for the noncustodial parent to meet before moving on to unsupervised visitation. Absent any specific conditions, the parent can also request an official review by the court.
The most common type of visitation in the custody order, unsupervised visitation means that a parent will spend time alone with the child, including overnight visits. Typically, the court will create a specific schedule for the parents and child to follow. Unlike reasonable parenting time, if the custodial parent refuses to follow the court-ordered schedule, the noncustodial parent can request enforcement from the court.
The easiest way for the court to establish visitation is for the parents to agree to the type, frequency, and duration of visitation between the noncustodial parent and the child. When parents can't agree, the court will investigate what's best for the child. While most states utilize "best interest factors" in deciding custody, some states refer to parenting time or visitation guidelines when creating a visitation order.
For example, in Michigan, the law requires the judge to evaluate specific "parenting time" factors to determine each case's best visitation order. (Mich. Comp. Laws § 722.27a.) Each state's procedure for visitation varies. If you're unsure what your judge will consider when deciding, contact an experienced family law attorney near you.
Unless both parents agree to reasonable visitation (or the court orders it), the judge will create a specific visitation schedule within the custody order. Visitation schedules eliminate unnecessary fighting or court filings between parents because the terms included in the order are non-negotiable. In other words, if a custodial parent refuses to allow visitation between the noncustodial parent and child, the parent can ask the court for enforcement.
While each case varies, each visitation schedule specific visitation schedules are detailed and include the following information:
A typical visitation schedule may include alternating weekend overnight visits, alternating school breaks and holidays, and extended visitation over summer vacations. The contents of your specific schedule will vary depending on your case.
Regardless of where you live, courts favor all children's stability, so changing custody or visitation requires parents to make a case in court. As with all custody-related matters, if you and the other parent agree to change the terms of visitation and it's not harmful to the child, the court will adopt the new agreement and put it into a new order. However, if you can't agree, you'll have to ask the court to review and change the order.
The requirements necessary to change visitation are often easier than changing custody, but that doesn't mean the court will automatically agree to change your order. The requirements vary from state-to-state, but most courts require the parent requesting a modification to demonstrate that there's been a change in circumstances and that the order no longer serves the child's best interest.
If you're interested in changing the visitation order, you'll need to file a formal request with the court.
Reasonable visitation means that a parent has visitation with a child, but the court doesn't dictate the schedule's specifics. Parents will be free to establish the terms that work for the family. The downside of a "reasonable" schedule is that a noncustodial parent often doesn't have the teeth to argue if the other parent refuses visitation for any reason.
Most custody orders result in a fixed visitation schedule. As the name implies, there's not a lot of room for interpretation if a judge orders a fixed visitation schedule in your case.
The benefits of carefully drafted, fixed visitation schedules are that they leave very little room for argument. With all of the details covered in the agreement, you and your child's parent will know exactly when and where your child custody visits will occur and can plan accordingly.
A judge will consider either spouse's history of domestic violence when deciding custody. Generally, if the court finds a history of abuse, a judge can include in your custody order specific protections aimed at preventing future violence or abuse.
For example, a judge will often order supervised visits between the abusive parent and child to ensure the child's safety during visits. The goal of supervised visits is to ensure that the violent parent is not left alone with the child. In other cases, a court may order gradual visits between a parent and child until a judge feels confident that the child is safe in the parent's care.
All 50 states recognize some form of grandparent visitation. Nevertheless, each state's laws vary in terms of what's required for a grandparent to establish visits. Specifically, some state laws only allow a grandparent to seek visitation in the most extreme circumstances, such as if one or both of the child's parents have died. Other state rules are much more lenient and allow judges to order grandparent visitation as long it serves a child's best interests.
If you're determined to limit your child's time with a grandparent, be prepared to make your case for why continued visitation wouldn't serve your child's best interests.
As a grandparent, your rights are almost always secondary to a parent's. In some states, a grandparent can't seek court-ordered visits unless the child's parent is deceased or incarcerated. Other states allow a grandparent to seek court-ordered visitation when the visits would serve a child's best interests, and the lack of visitation would harm the child.
Grandparents can ask a court to intervene and force visits but dealing directly with the child's parent may help your relationship more in the long run. Mediation is another option to help individuals resolve their differences outside the courtroom. In mediation, a neutral third-party mediator will shuttle between each side to help negotiate an agreement. Yet, a court won't sign off on your agreement unless it serves the child's best interests.
Parents are encouraged to submit their own parenting plans or proposed visitation schedules. You are far more familiar than a judge with your family's dynamics and needs, and judges often defer to parents to make the schedule that works best for their children. A court will review any parenting agreement to ensure that it's reasonable and adequately meets the child's needs. It's important to make sure your parenting agreement is detailed enough to minimize conflict and argument over the child.