In a separation or a divorce where there are minor children, there is the issue of which parent the child will live with and who will have visitation rights. The parent who has the children less than half the time will generally have some kind of visitation, or time share, schedule.
Parents with minor children are required to come up with a parenting plan for the court’s approval and an order may then be issued. If it is not approved or the parents are unable to agree on one, they will have to see a mediator before going to court to have a parenting and time share plan hammered out. As in most issues involving children, the standard the court uses is if the time share or visitation plan is in the best interests of the children.
Visitation is a right for a parent, regardless if the parents are married to each other, but may be restricted or denied under certain circumstances if visitation is not in the best interests of the child.
Steps in Filing for Visitation Rights
There are certain forms for you to complete and file regarding visitation in a California divorce or separation matter:
- Stipulation and Order for Custody and/or Visitation of Children
- Child Custody and Visitation Order Attachment
It is always a good idea for you to consult with a divorce attorney, even if you are handling your divorce by yourself, regarding completing these and other forms.
Types of Visitation Orders
There are different types of visitation orders in California:
- Visitation pursuant to a schedule
In situations where one or both parents do not trust each other, a detailed visitation plan is ordered so that there is no dispute over who gets the children on certain days and at certain times. An order specifying a detailed order will set forth where the children will be during weekends, holidays, birthdays, bar mitzvahs, and other special events and in some plans, if the other parent will be present at these events. Many schedules include a weekday or weeknight visit as well with the non-custodial parent.
- Reasonable visitation
Should the parents be on amicable terms and not hesitant about communicating with one another, then a reasonable visitation order may be issued whereby there will be few details regarding time sharing and it is left to the parents to work out their own schedule. Parents need to be flexible regarding schedules and not demand strict times for picking up and dropping off the children and where the children will be during holidays and other events. If disagreements arise, an order that includes having the parties resort to mediation may defuse potential problems that can lead to litigation.
- Supervised visitation
There are cases where a parent has been accused of or there is sufficient evidence of abuse, domestic violence, substance abuse or criminal behavior so that the child’s welfare is at risk when with the non-custodial parent. Though the parent’s behavior may not be so egregious as to be denied visitation, the court may order that the parent visit the child at a particular facility where professional staff is present at all times with the child and parent. The court could also have a social worker or child services representative be present in the non-custodial parent’s home when the child is visiting. In cases where a parent has been absent for some reason and is just establishing or reestablishing a relationship with the child, the custodial parent, other adult or child care worker may be ordered to be present.
No right of visitation
There are also occasions where the court will order no visitation since it would not be in the best interests of the child since the parent poses a physical or emotionally traumatic risk to the child. This order may last at least until the non-custodial parent has demonstrated that he or she no longer poses such a risk after undergoing extensive counseling, therapy or other treatment.
Even though you have a parenting plan and time share schedule in place, it does not necessarily mean that it will work out for you and the children. Being separated from the other parent can exact an emotional toll on the children and a parent may find that his or her job is interfering with time spent with the children that was unanticipated. Hopefully, the other parent is flexible or reasonable and can accommodate a change. If you have an open-ended or reasonable visitation schedule, then changing the schedule should not pose a problem.
Otherwise, you should get the consent of the other parent to change the detailed order and request a modification. There must be changed circumstances to justify the change and the court is not required to change a time sharing order since the court is primarily concerned with the child’s safety, health and welfare. For example, a non-custodial parent who relocates should not have difficulty in obtaining a modification.
If you would like more information on filing for visitation rights, please contact Gastelum Law – we can help.