Child visitation and custody can be one of the most contentious areas of family law. Unsurprisingly, contested custody cases can be some of the most expensive to litigate. Accordingly, parents who negotiate a parenting plan in divorce mediation can save considerable money and stress. However, in some cases, the best interest of the child will compel a parent to seek full custody.
A parent must be granted reasonable visitation rights unless such visitation would be detrimental to the child’s best interest. The law recognizes that parents who are not awarded custody still maintain an interest in the companionship, care, custody, and management of their children.
In determining what is ‘reasonable visitation,’ the court has a wide range of choices and may craft a variety of orders. The court will consider factors that may be detrimental to the child’s best interest, such as domestic violence, alcohol abuse, illegal drug use, and parenting skills.
In sum, all visitation orders must protect the child’s best interest and ensure the health, safety, and welfare of the child in question while giving due consideration to the policy favoring frequent and continuing contact with both parents.
Incarcerated Parent Visitation
Despite being incarcerated, a parent still has a right to reasonable visitation with his or her child. Without a finding that visitation will be a detriment to the child’s best interest, visitation cannot be denied between children and their incarcerated parent.
If the child was conceived through rape for which the parent was convicted, the incarcerated parent could not be granted visitation rights.
Visitation by Non-Parents
The court can grant reasonable visitation rights to non-parents who have an interest in the child’s welfare. Reasonable visitation can be granted to stepparents, grandparents, and the specified relatives of deceased parents if the court believes that such visitation is in the child’s best interest. The visitation of nonparents may also be ordered based on the stipulation of the parents.
- Relatives of Deceased Parent – If a minor’s parent is deceased, the deceased parent’s children, siblings, parents, and grandparents may be granted reasonable visitation. Before granting such visitation rights to persons other than a grandparent, the court must consider the amount of personal contact between the party seeking visitation and the child.
- Stepparent Visitation – If the court finds that granting visitation rights to a stepparent is in the child’s best interest, the court may grant visitation to a stepparent. Such visitation, however, should not conflict with the custody or visitation rights of a birth parent.
- Grandparent Visitation – The law authorizes the court to award visitation to grandparents even if both parents of the child are still living. Grandparents may either seek visitation in any custody proceeding between the parents or bring an independent action to seek visitation.
Troxel Limits on Visitation
In the case of Troxel v. Granville (2000), a court granted the paternal grandparents extensive visitation of their deceased son’s children, despite the objections of the child’s mother. The case was elevated to the Supreme Court of the United States, and the Court subsequently held that in the context of the grandparent visitation, the state unduly interfered with the parent’s right to make decisions concerning the care, custody, and control of the family.
Simply put, according to the case of Troxel, the court may not rely solely on the best-interest-of-the-child standard in awarding non-parent visitation if there is a fit custodial parent. To do so would violate the fundamental rights of the parent to make decisions concerning the child.
The court should not automatically presume that non-parent visits are in the child’s best interest. Instead, it should presume that the decision of a fit custodial parent is in the child’s best interest in the grant of non-parent visitation.
In determining whether to grant visitation to non-parents, the case of Troxel requires the court to:
- Determine if the parent is fit. If so, it is presumed that the decision of the parent is in the child’s best interest.
- Give special weight to the parent’s determination.
- Consider whether the fit parent has voluntarily allowed visits, no matter how limited.
- Lastly, the court cannot shift the burden to the parents to show that the visits are not in the best interests of the child.