Divorce: Mother’s Visitation Rights

The term “visitation rights” refers to a set of rights that are granted to the non-custodial parent, during divorce proceedings and arguments for child custody. The specific terms of each visitation arrangement are detailed in the “Child Visitation Agreement,” or “Child Visitation Schedule.”

These rights are what allow the noncustodial parent to spend time with their child. Visitation is generally scheduled and unsupervised. Courts always consider the child’s best interests when determining custody and visitation; the Child’s Best Interest Standard will be further discussed below. Some common examples of other factors that are considered include:

• The child’s age;
• The overall wellbeing of the child; and
• Each parent’s daily work and lifestyle schedules.

Until fairly recently, it was generally assumed that it was always in the child’s best interest for the mother to be granted custody, while the father would only be granted visitation rights. However, awarding the mother figure with primary custody is not always in the best interest of the child. It is considered to be unconstitutional for a family court to assume that mothers make better full-time parents, by default.

It is important to note that mothers are still often awarded physical custody the majority of the time. Additionally, it is important to consider that there is a negative public perception towards mothers who have been denied custody, and are instead awarded visitation rights. This can further complicate an already complicated subject.

Regardless of gender, all noncustodial parents are generally entitled to common visitation rights. Unless a history of violence or abuse exists, it is generally in the child’s best interest to maintain some sort of healthy relationship with both of their parents. In instances of abuse or domestic violence, the judge will take this information into consideration when determining custody and visitation rights. They will most likely require supervised visitation; it is rare for family judges to deny a parent of all visitation rights entirely.

What Is The Child’s Best Interest Standard?

Before continuing to speak about mother’s visitation rights, it is helpful to further discuss the Child’s Best Interest Standard. This is a standard used by most family courts across the U.S. in order to determine custody and visitation issues according to what is best for each specific family. Although there is no perfect process for determining what is in the child’s best interest, the analysis provided by judges and family court mediators generally includes a variety of factors which are tailored to the particular child (or children) in question. When determining who gets custody and who gets visitation, and on what terms, the interests of the child are to prevail over their parent’s desires.

Generally speaking, most state courts will consider the following factors when determining custody decisions:

• The child’s background, including their assigned sex at birth, age, and personal health characteristics. Disabled children may be more familiar with a certain home, and accustomed to a specific parent who provides daily specialized care;
• If the child is at least 12-14 years old, many jurisdictions will consider the child’s preferences as an important factor. They will consider the child’s opinion as long as the child demonstrates a certain level of maturity. However, a child’s preferences are not a substitute for other factors, barring instances of abuse or neglect. A child simply preferring one parent over the other will not override the court’s consideration of all other factors;
• Environmental factors, such as the quality of education in each parent’s school district, the safety of each neighborhood, and each parent’s proximity to other extracurricular activities. Courts are more likely to continue already established patterns for a child;
• The physical and mental health of each parent;
• Each parent’s ability to provide emotional and financial support for the child when in their care. It is important to note that while poor parents will not be prevented from having custody of their children simply because of their financial status, the court could decide that the permanent residence should be with the parent who is able to maintain an appropriate home on a long-term basis;
• The stability of each parent’s lifestyle and background. Parents who have careers requiring substantial overnight travel could face difficulty when securing residential custody, unless changes at work are made to better accommodate the needs of the child;
• The existence and level of attachment to other siblings, or other important family members in the home. Courts generally encourage children to maintain their relationships with half siblings, as well as other family members, such as grandparents; and
• Each parent’s commitment to facilitating an ongoing and healthy relationship between the child and their other parent. Parents who are cooperative with each other in terms of their child’s needs, and handle disputes respectfully, are much more likely to receive equal rights than parents who speak ill of the other to the child.

What Rights Are Included In Visitation Rights?

As previously mentioned, all visitation rights are detailed and contained within each specific child visitation agreement. This agreement will include each parent’s duties and responsibilities to their child. A general child visitation agreement may contain the following information:

• Where the child will live for the majority of the time;
• A visitation schedule detailing which days and holidays the noncustodial parent is allowed to visit the child;
• Allowable activities when with either parent;
• Any notable geographic restrictions; and
• Modification instructions, in case there is ever a material change in the circumstances of either parent or the child.

Generally speaking, noncustodial parents receive the same visitation rights regardless of their gender. Some examples of these specific rights include:

• The right to interact with their child during visitation, as court ordered;
• The right to schedule any allowable activities during such times;
• The right to be free from the other parent’s control, threats, and impositions;
• The right to notify local police of any denied visitation hours, as the first step in petitioning the court to modify the visitation agreement; and
• The right to receive an injunction in order to stop the other parent from taking their child out of state.

To reiterate, it is considered to be unconstitutional for a court to assume that mothers intrinsically make better parents. Additionally, courts would be in violation of the constitution if there were to base custody and visitation decisions solely on the gender of the parents, instead of according to the child’s best interest. As such, a mother would not and should not necessarily receive more or different visitation rights than a father would.

Can Courts Deny Visitation? Can Visitation Be Modified?

Courts will rarely deny visitation rights entirely. As previously mentioned, it is probable that the court would only deny visitation rights if there is a history of abuse or domestic violence. Likely, a court would instead order supervised visitation.

If either parent violates the court ordered visitation schedule, they may:

• Lose their visitation rights;
• Be held in contempt of court; and/or
• Face criminal charges.

It is imperative that you seek modification if you are unable to follow the guidelines set by the agreement. If the current agreement no longer serves the child’s best interests, it will likely be modified in order to better serve the child. Additionally, if there has been a significant or material change in circumstances since the order originated, the courts will consider a modification to reflect these changes.

Some common examples of a material change in circumstances includes:

• A long distance move, which would make the current visitation schedule impractical or impossible;
• The parent not requesting the modification has created an unsafe home environment for the child; and/or
• The parent not requesting the modification repeatedly ignores or violates the current visitation schedule.

Do I Need an Attorney For Divorce and Mother’s Visitation Rights?

If you are going through a divorce, or if you have questions regarding visitation rights, you should absolutely consult with an experienced and local child visitation attorney. Because state laws vary widely in terms of family law and visitation rights, working with a local child visitation lawyer will ensure you receive the most relevant legal advice for your state.

An attorney will also help you determine your best course of legal action. Finally, an attorney will also be able to represent you in court, as needed, while protecting your parental rights.