The issue of parental rights and visitation is one that comes up often between divorced parents. It can remain a point of disagreement long after the divorce has been granted by the court.
Parental Rights and Visitation Basics
Non-custodial parents have the right to maintain a relationship with their children. The court will consider interfering with this right only in circumstances where allowing the parent to spend time with the child is determined not to be in the child's best interests. Examples of circumstances where the court may deny visitation to a non-custodial parent include the following:
- Addiction to alcohol and/or drugs
- Physical abuse
- Verbal abuse
The visitation schedule for the divorcing couple will be included in the divorce agreement. It will be based on the ages and needs of the children in question. As the children get older, the visitation schedule will probably need to be adjusted.
Interfering with Parental Rights and Visitation
A problem that can occur when the non-custodial parent is attempting to exercise his or her visitation rights is where the custodial parent interferes with it by not turning the children over as agreed. Some custodial parents choose to do so because the non-custodial parent is not making child support payments as agreed.
Child support and visitation are two separate issues in the eyes of the law, and a custodial parent who repeatedly denies visitation rights to the non-custodial parent is running the risk of the court changing the custody arrangement.
The court will consider the situation and the events that have occurred between the two parents before determining whether changing the custody arrangement is appropriate. Specifically, the judge will want to know whether any or all of the following events have occurred:
- Alienation of affection from the non-custodial parent
- Denial of visitation with the child as set out in the divorce agreement
- Moving to a distant location to interfere with the non-custodial parent's scheduled time with the child without informing his or her former spouse
If the non-custodial parent can show that the custodial parent has established a pattern of engaging in these behaviors, the judge may rule that a material change in circumstances has occurred and that the custody agreement should be changed to remove the children from the home and that the current non-custodial parent should become the custodial parent.
The judge will consider all the facts in the case to determine whether switching custody is in the best interests of the child before making a ruling of this type. Making allegations like the one above does not guarantee that the court will make such a drastic change in the custody arrangement. To do so, the current non-custodial parent must be found by the judge to be a "fit and proper person" to have custody of his or her children.
In most parts of the United States, non-custodial parents who are denied their right to visitation can apply to the court for a change of custody. The exceptions to this rule are Wisconsin and Florida. In Wisconsin, the court will not hear motions to change custody due to interference with parental rights and visitation within two years of the original custody order being made. Florida courts have concluded that interfering with a non-custodial parent's right to visitation does not amount to a material change in circumstances.
Divorcing parents who have minor children need to understand that no matter how they happen to feel about their former spouse personally, the non-custodial parent is entitled to continue having a relationship with his or her children. While it may be tempting to badmouth a former partner in front of the children, doing so may result in losing custody of the children. Choosing one's words carefully, or saying nothing at all, is a much better choice for divorced parents.