If you're like most parents, you want to spend regular time with your children, whether you're divorced, separated, or never married the other parent. Unless your kids live with you most of the time, you'll usually get that parenting time through what's commonly called visitation. But visitation can often be a source of conflict, during and after a divorce. Learn when you have a right to see your children, how parents or judges decide on visitation schedules, and how to enforce or change child visitation.
Courts in the United States have long held that parents have a fundamental right to the care and companionship of their children, as long as they don't pose a danger to the kids. And most state laws on child custody recognize that it's usually best for children to have regular contact with both of their parents after divorce or separation.
In specific cases, a parent's right to visitation is typically part of the court's custody orders. There are different types of child custody: legal custody (the right to make important decisions about your children's lives) and physical custody (the right to have your children living with you). When one parent has sole physical custody, the other parent usually has visitation rights.
As the trend in custody arrangements has increasingly moved toward shared physical custody, many states use terms like "parenting time" rather than visitation. But even when parents share custody, it's rarely an exact 50-50 split. In these situations, the parents who don't have the kids more than half of the overnights in a year are generally called noncustodial parents, and the time they have with their children may be called parenting time or visitation.
Most of the time, parents work out their own custody and visitation agreement, either as part of an overall divorce settlement agreement or as a stand-alone parenting agreement. The parents might simply agree that one of them will have sole physical custody and the other will have "reasonable visitation" (more on that below). More typically, however, the parents will work out a parenting plan that includes details such as:
Some typical schedules call for the noncustodial parent to have the children one evening a week, overnight on the weekends (or alternating weekends), alternating holidays, and extended visitation over summer vacations. But the beauty of a parenting agreement is that you and your co-parent can come up with a schedule that's tailored to your needs and those of your children, rather than relying on a judge to dictate your custody arrangements.
If you're having trouble agreeing about custody and visitation, custody mediation may help you find solutions and resolve your disagreements. In fact, courts in many states will require parents to participate in mediation of any custody disputes they still have after they've filed for divorce or a separate custody proceeding.
Once you've agreed about your parenting plan, you'll need to submit your signed, written agreement to the court for a judge's approval. But a judge will usually approve the parents' agreement and make it part of an official court order, as long as the parenting plan appears to be in the children's best interests.
If you and the other parent aren't able to agree about visitation, even after trying mediation, a judge will decide what custody arrangements would be in the best interests of the child, based on the specific circumstances.
Some states require parents to submit a proposed parenting plan. The judge will then consider both parents' proposed plan, along with the evidence they've submitted to support their proposals. Judges may also order an investigation, such as a child custody evaluation, to help them decide what would be best for the kids.
Sometimes, a custody order—whether based on the parents' agreement or on the court's decision—will award physical custody to one parent and "reasonable visitation" to the noncustodial parent, without specifying a schedule or frequency for that visitation.
There are no guidelines for what's considered reasonable visitation. Instead, it will be up to the parents to work out when and how often the visits will take place. That's why this type of visitation order is usually only appropriate when the parents can cooperate and communicate well. As a practical matter, custodial parents usually get to decide whenever there's a dispute. And noncustodial parents who don't like those decisions will have to go back to court to ask a judge to enforce the orders or change the custody arrangement (more on that below).
To avoid these problems, many parents and judges prefer to come up with a parenting plan that provides a fixed visitation schedule. That way, there's more predictability and less room for argument.
Judges usually find that it's in the child's best interests to have ongoing relationships with both parents. But when it's not safe for a child to be alone with a parent—such as when the parent has a history of child abuse, domestic violence, or serious substance abuse or other mental health conditions—judges will place restrictions on that parent's visitation rights.
Even when a parent's past behavior or mental health condition presents a danger to a child, judges usually prefer to allow some parent-child contact under restrictions meant to protect the child from harm. The most typical protection is to allow only supervised visitation. With supervised visitation, the parent and child will meet at an approved location, with a social worker or other reliable monitor in the room during the entire visit. Sometimes, judges will allow families to choose the monitor and the place.
When judges order supervised visitation, they typically attach conditions for removing the restrictions. For instance, parents with a history of drug or alcohol abuse may be able to move on to unsupervised visitation once they've successfully completed treatment and have provided regular "clean" drug tests or alcohol monitoring.
You shouldn't be able to limit your ex's visitation rights simply by throwing around unsubstantiated claims of abuse or other behavior that could harm your child. Instead, you'll need to provide evidence to support those claims. And if you're the one being accused of endangering your child, you have the right to present evidence to counter those claims, such as testimony from independent witnesses. You may also request a court-appointed custody evaluator (or even hire your own evaluator) to investigate and prepare a report for the court.
If you believe your ex is guilty of abuse or some other behavior that would mean it's dangerous for your child to spend time with that parent—or if you're on the receiving end of claims like that—it's important that you speak with a lawyer. An experienced family law attorney should be able to evaluate your case, gather the kind of evidence you'll need to convince a judge, and help protect your rights and your children's best interests.
It's worth pointing out that if a judge finds that a parent has made unsubstantiated claims of abuse, the judge may award physical custody to the other parent. Although judges will consider any history of abuse when they're awarding custody, they typically will also consider each parent's willingness to encourage the child's ongoing relationship with the other parent.
Just because parents have a visitation agreement and custody orders, that doesn't mean they'll always abide by the schedule and other provisions. Problems with visitation include when:
You should contact law enforcement if you believe your ex is guilty of parental kidnapping. With more usual types of visitation violations, you may need to go back to the family court to ask a judge to enforce the custody orders. If the violations are relatively serious and repeated, the judge will typically order the other parent to obey the orders and then, if the behavior continues, will impose penalties for contempt of court.
If you and your co-parent can agree on changes to your current visitation and parenting plan, the judge will usually approve your agreement and make it part of a new court order, as long as it appears to be in the child's best interests.
But if you can't agree on a change, one of you will need to file a motion (a formal written request) with the court to request a custody modification. Usually, it's easier to make changes to the visitation schedule than it is to switch physical custody from one parent to the other. The requirements vary from state to state. But most states require that whenever you're seeking a modification of custody orders, you must show that there's been a significant change in circumstances, and that the existing orders no longer serve the child's best interest.
Because the rules and procedures can be complicated, you'll usually need the help of lawyer to navigate custody modification proceedings unless you and the other parent have an agreement.
Parents may always choose to allow grandparents to visit with their children. But sometimes parents cut off contact, because of disagreements in the extended family, when the parents divorce, or when one parent dies. When that happens, the grandparents might be able to request visitation orders from the court—but that will depend on the specific circumstances and the state where the child is living.
Several states allow grandparents to seek visitation rights over the parents' objections, but only under limited conditions. For instance, grandparents in Texas may request visitation (known in Texas as "access") only if:
(Tex. Fam. Code § 153.434 (2023).)
The limitations in some states are less stringent. In California, for example, grandparents may request visitation if:
Even when grandparents meet one of those threshold requirements, the judge must find that the grandparents were already bonded with the child, such that allowing them to visit would be in the child's best interests. Also, the judge must balance the child's interests in seeing the grandparents with the parent's rights to exercise their authority. (Cal. Fam. Code § 3104 (2023).)
Courts have set limits on when states may allow grandparent visitation over parents' objections. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court laid out three fundamental principles that apply to grandparent visitation:
Based on those principles, the Idaho Supreme Court ruled in 2022 that Idaho's grandparent visitation law violated parents' fundamental rights to make decisions about their children, because it didn't set any limits on when grandparents could request visitation, nor did the law require proof that not awarding the visitation would harm the child. (Nelson v. Evans, 517 P.3d 816 (Idaho Sup. Ct. 2022).)
If your grandchildren's parents won't let you visit with their children, despite your attempts to talk about the issue, you can always ask them to participate in mediation. A custody mediator—especially one who's trained in family relationships, such as a social worker or licensed marriage and family therapist—may be able to help you find solutions that all of you can live with. And reaching an agreement through mediation will almost certainly result in less hurt feelings and bitterness than a court battle.