Click on any of the Frequently Asked Questions listed below for a link to the answer.
1. How is visitation established? Visitation — also commonly known as "time-share" — is the compliment to custody. When primary physical custody is awarded to one parent, the other custodial parent will usually have some type of court ordered time-share privilege. The Court has a responsibility to allow visitation privileges to a parent unless visitation is deemed detrimental to the child. These privileges vary from cases to case, depending on all kinds of factors, and sometimes can be the single most contested issue in a dissolution.
Initially, the Court expects the parents to come to an agreement by themselves regarding visitation privileges and procedures. Court involvement transforms an already difficult process into a far more invasive, complex, and expensive one. Only after the parents have demonstrated that they cannot come to an agreement by themselves — or with an appropriate mediator's help — will the Court involve itself and make a ruling on the issue.
Cases that involve domestic violence or abuse accusations are especially difficult. Such charges can result in "supervised visitation" whereby a parent may spent time with the children only under a court-approved monitor's supervision. Unfortunately, in these cases, it often is up to the accused parent to prove that he or she has done nothing to warrant such an infringement on his or her parental rights.
An order regarding time-share sometimes includes specific guidelines that each parent will be expected to follow regarding transfer of the children. In cases where one parent is in a location that he or she wishes to remain confidential, such as a domestic violence victim shelter, the court will take steps to insure that the parent's residence remains confidential. For example, by having the custody transfer take place in a safe, neutral location such as a local police station.
Time-share is a very important consideration in most cases. This is true not only because time-share determines the time spent by each parent with the children, but also because time-share has a major impact on the amount of child support awarded. (Click to return to Visitation Question #1.)
2. What if the other parent does not pay child support? Do I sill have to allow visitation? YES. Every parent has a financial obligation to support his or her children and child support must never be confused with custody or visitation rights. There is no state which permits a parent to withhold child support because of custody or visitation disputes. If a parent believes his custody and visitation rights are being disrupted, he needs to ask the court for assistance, rather than stop paying child support. The same goes with refusing to allow custody and visitation for failure to pay support. (Click to return to Visitation Question #2.)
3. How is custody and visitation determined? Many parents try to work out custody and support agreements on their own to avoid potentially costly attorney and court involvement; and never get a court approved custody order. This is a great situation when the parents are getting along and both are getting their fair access to the children. The majority of the time, however, not having a court order leaves the non-custodial parent vulnerable to the whims of the primary custodial parent (usually the mother). Without a custody order, the primary custodial parent could refuse to let the other parent see the children and could move out of the community to another city, county, state or even to another country. The non-custodial parent may have no grounds to get custody of the children back.
A Court issued custody and visitation order will give each parent the power and control needed to ensure that their custody and visitation rights are not unfairly controlled or interrupted by the other parent. Each parent also will have legal options if the other parent abducts the child or attempts to move away with the child. (Click to return to Visitation Question #3.)
4. What is the best situation to get 50/50 physical custody and visitation? Both parents living in the same community is the best opportunity to get true 50/50 physical custody. When both parties are good parents, and both have immediate and convenient access to the child's school and/or daycare facility, then equal access to the child is appropriate.
Many factors will influence the Court's decision in this situation, such as whether an existing custody order exists, how involved the parents have been in the child's life so far, and work schedules. Parents will need to show that it is in the child's best interest to be with both parents equally in order to get this optimal custody arrangement. (Click to return to Visitation Question #4.)
5. What if parents do not live in the same community? Can you still have 50/50 physical custody? When the parties do not live in the same community, the option to have true 50/50 custody timeshare is much less reasonable or feasible. There will need to be a "primary custodial parent" where the child primarily lives with one parent (usually during the week when school is in session), and the parents share all the out of school time. When both parents are good parents, fathers and mothers have an equal right to be the primary custodial parent. The Court will determine who is the primary custodial parent by determining which situation will be in the child's best interest. (Click to return to Visitation Question #5.)
6. What if one parent has other issues which may jeopardize the child? If there is drug, alcohol, physical, or mental abuse, mental illness, criminal activity, etc., one parent may need to have less, supervised or no parenting time with the child. These cases are handled on a case by case basis depending on the nature and severity of the issues. Often times, the Court will look to see if the parent is making efforts to get help with such issues and may establish a long-term parenting plan which sets out specific rehabilitation criteria that a parent must meet in order to regain custodial and visitation rights. As long as the other parent is seeking help for their problems and staying clean, the Courts will make orders to facilitate the parent rebuilding a relationship with the child. Often the Court will involve psychologists and other professionals to help facilitate such a plan. (Click to return to Visitation Question #6.)
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