Frequently Asked Questions (“FAQ”)
on Visitation Rights
Q: What is a Visitation Exchange?
A: A visitation exchange takes place every time a child goes from the physical custody of one parent to the other. In cases where both parents are able to set aside their personal differences for the sake of the child, there is usually no problem with the visitation exchange; one parent simply goes to the residence of the other to pick up the child, or one parent drops the child off at the other parent’s home.
Visitation exchanges become problematic when the personal differences between the parents are not settled. In these difficult cases, visitation exchanges can be conducted in a public place—such as a restaurant, a police station, hospital, or library—where there are a lot of people around who would notice if an argument should arise.
In extreme cases, one parent can leave the child with a visitation supervision monitor, and the other parent arrives 15 minutes later. The visitation proceeds under the supervision of the third-party monitor. Then, the visiting parent leaves 15 minutes before the other parent returns to pick-up the child. Creative visitation exchanges are sometimes necessary to allow visitation while keeping separation between the parents to reduce the possibility of violence or arguments between them.
Q: If Child Support is Not Paid, Must Visitation Be Allowed?
A: Yes. The issues of child visitation and child support are separate. Failure to pay child support is insufficient grounds to stop the right of the non-custodial parent to have visitation with their child. The court will order visitation rights, in the best interest of the child, to promote love and affection with both parents. Child visitation is vital to the non-custodial parent, so that a meaningful relationship between child and parent can become established. Child support meets the financial needs of the child, and is based on the ability of both parents to provide for those financial needs. Thus, it is a separate issue; the failure of one not does not have a determinative effect upon the other.
The custodial parent must continue to allow visitation with the child despite failure of the non-custodial parent to pay child support. Although this may be very frustrating to some, if the custodial parent “frustrates” the right of the non-custodial parent to visit with the child, the non-custodial parent could ask the court to change custody of the child based upon this frustration of visitation.
Q: What Happens When a Parent Frustrates Their Visitation Rights?
A: Frustration of visitation occurs when the custodial parent takes steps to prevent the non-custodial parent from having contact with the child. This could be an innocent, isolated occurrence, such as taking a child to a doctor to receive medical attention at the time the non-custodial parent is to arrive at the house to pick-up the child for a scheduled visit.
On the other end of the spectrum, when one parent “disappears” with the child, this could be a kidnapping or abduction, which would result in criminal prosecution. Frustration of visitation could be the grounds for modification or termination of custody rights.
Q: Can Visitation be Denied to a Non-Custodial Parent?
A: Yes, but this occurs only in extreme cases. When one parent has abused or neglected a child, this parent’s right of visitation can be denied, awarding the other parent sole legal custody and sole physical custody. In less extreme cases, the court may allow visitation, but subject it to certain restrictions. The courts prefer supervised visitation to denial of visitation on the basis that there is a strong public policy to promote continuing and frequent contact between the child and both parents.
Q: Do Grandparents Have Visitation Rights?
A: Yes, but there are limitations under which a court can order grandparent visitation. Grandparents typically can join an action between the parents, or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren.
The problem is that the grandparent may have to prove to the court that harm will occur to the grandchild in the absence of visitation. Since it is typically viewed that parents have a fundamental right to the care, custody, and management of their child, only a compelling interest would be sufficient to allow a court to interfere with the parent’s right to raise their child without interference. This may be difficult to prove, since the grandparent must prove that harm will result to the child’s health and welfare should the court not order the parents to allow visitation with the grandparent. This is a difficult burden of proof to sustain.