Visitation Rights

Murrieta Visitation Lawyer

In the case of a legal separation or divorce where children are involved, a child custody order must take place to determine the custody rights to the children by either or both parents. Once child custody issues are settled, child visitation rights must be granted to the parent who is considered “non-custodial”, meaning the parent who didn’t receive custody rights.

The non-custodial parent must be granted “reasonable visitation rights” unless it is proven that their visitation with the child would be “detrimental to the best interest of the child”. Visitation rights are determined by California courts and drafted into a child visitation order. If this order is not followed by either parent, severe penalties could arise. Both parents must comply with the custody and visitation orders at all times.

Courts have a generally broad discretion in defining a visitation schedule with the sole guideline being that everything settled upon is in the child’s best interest. Child visitation orders must assure the child’s health, safety, welfare and that the child is in “frequent and continuing contact with both parents”, except in the cases where it has been proven that visitation with either parent would not be in the child’s best interest. In addition to these guidelines courts take into account several other factors when determining child visitation orders:

  • Child’s age
  • Child’s maturity
  • Whether or not the child has special needs
  • Child’s own preference (depending on the age)
  • Parent’s physical proximity to the child’s primary residence
  • Parent’s schedule and financial burden

Several issues may exist, but are not eligible in child visitation. The following are items that are not legitimate when considering or settling on the decision of child visitation orders:

  • Child Support ­ parent visitation rights are to be determined independently of any other issue before the court, meaning that a child visitation order cannot be conditioned upon the payment of child support. Whether a parent is paying child support or not has no bearing on whether contact from that parent would be detrimental to the child.
  • Parent’s Absence ­ a parent’s absence from the physical residence cannot be considered when determining child custody or visitation if: (1) the absence only lasted a short time and during that time the parent showed an interest or made reasonable effort in maintaining contact with the child, (2) the absence resulted from threatened or actual domestic violence.
  • Parent’s Lifestyle, Sexual Preference, Religious Beliefs, Etc. ­ Visitation rights cannot be restricted solely on the basis of any lifestyle habits a parent may have unless it is proven to be detrimental to the child.

Grandparent Visitation Rights:

Child visitation can also be granted to other family members other than the parents ­ such as grandparents (most common). California law has granted the right to the court to determine and grant “reasonable visitation” to any other non-parent family member who has an interest in the child’s welfare. This right, however, is limited. Parents still have the right to make decisions concerning the care, custody and control of their children. A court’s decision may override the objection of a parent in the instance that such visitation would be in the child’s best interest. This exists also that the parent’s objection can override the court’s decision if it can be proven that such visitation would not be in the child’s best interest.

Even if the court does not grant visitation rights to the grandparent in question, this does not prevent the grandparent from seeing or spending time with the child…it simply does not grant the grandparent legal visitation rights. The child will not have to visit the grandparent on a schedule and no court orders are drafted. The child can visit the grandparent at leisure or their liking.

Many factors come into play when grandparents seek visitation rights, especially if those visitation rights are contested by the custodial parent. California law states:

“If a court can deprive fit parents of the custody of their children without violating the parents’ fundamental right to the care, custody, and control of their children, then certainly a court can order grandparent visitation–a much more limited form of interference with the parents’ custodial rights–without necessarily causing such a violation.”

It is important to remember that every family situation is different and unique and no case is “clear cut” or a “done deal”. Different courts and different judges have different stances on child visitation and may interpret the laws and guidelines differently.

If you are unhappy with your current child visitation situation or your needs have changed and modifications need to be made to your child visitation order, always make sure you have strong legal counsel on your side ­ this will ensure the best outcome for you and your child.

For questions or a free consultation regarding child visitation, please call California child visitation lawyer Eliana Phelps for your free consultation.

Eliana Phelps