No one wants to undergo a divorce. However, when it happens, there are several matters that you need to sort out. One of the most difficult issues in a divorce is when minor children are involved. If there are children present in the marriage, you must decide where the children will live and how you will make important decisions in their lives. If you cannot agree on child custody, you must take the case to court, where the judge enforces their decision. Child custody matters are complex, especially when you have not had to think about them.
Often, the parent that does not receive physical custody of a child can file a petition for visitation. The judge’s decision to grant child visitation will depend on the arguments presented by each parent in court. Child visitation can be supervised or unsupervised depending on the noncustodial parent’s criminal history and the child’s safety. If the custodial parent does not agree with your request for visitation, the process could be long and tiresome. However, when the court grants you these rights and makes an order, it must be followed by all parties involved. If you seek a visitation order after a divorce, you will need the guidance of a skilled divorce attorney.
Understanding Child Visitation After a Divorce in California
When you undergo a divorce, the issue of child custody is major. Often, the court leaves it to you and your ex-spouse to decide where the child will live and how the decisions about their life will be made. Unfortunately, most divorces end in bitterness, and the communication between you and your ex-spouse may be strained. If you cannot agree on child custody, you can take the matter to court, where the judge decides for you.
Once a child custody case goes to family court, several options exist. The court can award joint custody where each parent has set days to stay with the child. The court may award joint custody for both parents or full physical custody to one parent. A parent that does not reside with the child is known as the non-custodial parent and is responsible for child support payments. Additionally, the non-custodial parent can be awarded visitation. This allows the non-custodial parent to spend some time with the child.
If the court denies you custody of your child, you may be able to exercise your visitation rights. If your visitation schedule is decided in court, you and the custodial parent must cooperate and make it possible for the visitation to proceed as planned.
The first step towards obtaining child visitation rights in California depends on the parent’s involvement in a family law case. If your case is already in court, the non-custodial parent must prepare a motion requesting visitation and incorporate it with the existing case. If you and the other parent agree that the request is right, gaining visitation rights is short and smooth. If you are a non-custodial parent, your chances of obtaining your visitation rights are higher if you start paying your child support.
If there is no case in court, the non-custodial parent must initiate one. If you are still married but plan to file for divorce, the petition for visitation can be part of the divorce or legal separation. When filing a motion for visitation, a father must provide evidence of paternity and compliance with child support requirements.
Factors that the Court Considers when Awarding Visitation
There are several types of visitation orders that the court can make during your child custody case, including:
- Visitation on schedule. A visitation order can be established on a schedule your ex-spouse must agree upon. Depending on each parent’s schedule, the court will create a plan. Such a visitation order details the time and date when the non-custodial parent spends time with the child.
- Reasonable visitation. A reasonable visitation order is open-ended, where you and the other parent can agree on the duration and dates for the visitation. The family court may award reasonable visitation when the couple’s divorce or separation is amicable. However, when you have disagreements and cannot agree on a schedule, you will have to deal with a scheduled visitation.
- Supervised visitation. Supervised visitation is a type of child visitation order which allows an unstable parent to spend time with their child in a controlled environment.
- No visitation. If there is evidence that one parent could physically or emotionally harm a child, the court could deny the request for visitation. Having no contact with your child can be devastating. Therefore, seeking legal guidance is key during custody battles.
The Child's best interest policy is key in determining visitation and custody in California. Some of the factors that affect a judge’s decision to award visitation and the type of visitation include:
Ability to Support the Child
The court will look closely at your ability to care for a child before awarding custody. Although your income is not a factor, you must be able to cater to the child's needs during their stay with you. The ability to care for a child means providing a clean and safe environment. If you cannot care for a child as expected, the court can deny you custody but allow visitation.
Schedules and Stability
The goal of awarding visitation to a non-custodial parent is to ensure that a minor maintains a close and healthy relationship with both parents even after a divorce. The ideal situation is having joint physical custody of a child. However, the court will consider the stability of each parent. The court may be reluctant to move a child from a stable home environment to avoid anxiety and emotional stress. If custody-sharing affects a child’s schedule, a judge will award visitation to the less stable parent.
History of Domestic Violence or Child Abuse Allegations
The family court is strict when allowing contact with a child. If there have been child abuse or domestic violence allegations, the court will be reluctant to award child custody. This is because the judge wants to ensure the safety of the child.
If the child abuse allegations against you are substantiated, the court may award you supervised visitation. Supervised visitation means that your interaction with the child is monitored and controlled. However, you must understand that some parents bring false allegations of abuse to ensure you are denied visitation or custody.
The Health of the Parent
Caring for a child can be more challenging when a parent is physically challenged. Therefore, your health is key when determining custody or visitation. If you are physically or mentally incapacitated, the court may have to award custody to the other parent and allow you to visit with the child. The court may allow reasonable visitation if your health is the only factor that deters your stability to care for the child.
History of Drug Abuse
A history of drug or alcohol abuse can significantly impact your custody and visitation rights. Although this does not disqualify you from contact with a child, a substantial record of drug abuse could cause a custody denial. You are responsible for showing the court that the child will be safe with you. The court could award supervised visitation or deny all contact between the non-custodial parent and the child for most people with untreated drug abuse problems.
Supervised Visitation
California family law seeks to protect the interests of children in the middle of divorce and custody battles. A child’s best interest after separation of divorce is continuity, stability, and a loving relationship with both parents. Based on a child’s safety issues, the court will order that the non-custodial parent exercise their visitation rights in the presence of a third party. California family court orders supervised visitation to allow non-custodial parents to build relationships with their children as they work through their issues. Some of the common reasons why the court orders supervised visitation include the following:
- You have been accused of domestic violence, substance abuse, or child abuse.
- You have personal issues that make you unfit to be left alone with the child.
- You have been absent in a child’s life for a significant period. Supervised visitation allows you to interact and relate with the child in a safe and favorable environment.
- When there is an increased threat that you may take away the child without consent from the custodial parent, your visits with the child are supervised.
- You are diagnosed with mental illness. When there is evidence that a parent is mentally challenged, leaving the parent alone with a minor may jeopardize their safety. Therefore, the court may order supervised visitation until you have been treated for your mental issues.
You and your ex-spouse can establish a parenting plan to agree on supervised visits. If you disagree with the parenting plan or provider, the court works to specify the duration and location of the visits. All factors affecting the child’s health, safety, and well-being are considered when scheduling these visits.
The family court uses these visits to gauge how well the non-custodial parent will cooperate in ensuring that the child’s needs are met. There are two types of child visitation providers:
- Professional visitation provider. A professional visitation provider is any individual who receives payment to provide supervised visitation services.
- Non-professional supervisors. When a family member or friend supervises child visitation, they act as non-professional supervisors.
While finding a non-professional may save you on costs, finding a neutral person with that both parents agree is challenging. Additionally, some friends and family could fail to maintain a regular commitment to the visits. The role of a visitation supervisor is to ensure the child's safety and support the child in their interactions with the parent.
The supervisor must always be present to monitor every activity and conversation between the child and the non-custodial parent. Whether the supervisor is professional or unprofessional, they must follow these guidelines:
- Ensure that the child is in their sight and never leave them alone with the parent.
- Interrupt any appropriate conversations
- Keep a record of everything that happens during the visit
Both parents must cooperate with the visit to ensure the child’s well-being. The court expects the non-custodial parent to arrive early for the visits, show positivity and avoid using the child as a messenger to the other parent.
Unsupervised Visitation
When the court awards you unsupervised visitation with your child, you can spend time with the minor without the other parent or a third party during the visit. Additionally, an unsupervised visit can take place anywhere and at any time as long as both parents agree upon the time and location.
Mostly the court will award unsupervised visitation to a parent with no violent history and they do not pose a risk of physical or mental harm to the child.
Modifying a Child Visitation Order
A child visitation order is not permanent. If the schedules do not work well with you or you believe the child is in danger when visiting with the other parent, you can request a modification of the order. Seeking to modify a visitation order is a long and tedious court process that can take several months. The legal system that arranges visitation after a divorce is not perfect. If you are a non-custodial parent, there is little that the custodial parent needs to do without compromising your visits with your child.
Returning to court to report contempt of the visitation order can irritate the judges. You can go back to court for a visitation order modification under the following circumstances:
- There is a serious interference with visitation.
- You have attempted to discuss the issues with your ex-spouse, and it is unlikely that you will resolve the matter out of court.
Either parent can seek to modify the order. A noncustodial parent may seek more time with the child or change a visitation order to shared custody. The custodial parent can file for a modification to disallow the other parent's visitation or order supervision. Even when one parent is found in contempt of the visitation order, the court is not quick to modify the order. A judge will agree to change the order if the reason behind your custody denial has changed or the custodial parent has violated the order on multiple occasions.
The process of seeking a modification will begin when you file an ‘Order to Show Cause,’ which is attached to a written declaration and served to the other parent. Additionally, you must indicate any change of circumstances or issues your child may face with the other parent. Some of the factors that could justify a modification of the child visitation order include the following:
- Frustration during visitation. If your ex-spouse denies you rightful contact with the child according to the visitation schedule, you can request a modification. Additionally, when a non-custodial parent fails to take the child back after a scheduled visit, the issue may prompt a modification.
- Home environment. You can seek to modify a child visitation order to joint custody if you feel that the custodial parent does not provide a stable or safe environment for the child. A safe environment is determined by the kind of people living in the home and other activities the adults in the home partake in.
- Discipline and punishment. If you believe your child is suffering corporal punishment, you can petition the court for an order modification.
- Geographical distance. When formulating a visitation schedule, the court will consider the geographical distance between where the child and the non-custodial parent live. If you have moved closer to the child’s permanent home and are ready to spend more time with them, you can request a modification of the visitation order.
- Psychological well-being of the child. If you were close to your child before the divorce and lost the custody battle to the other parent, the child may be affected by the relationship strain. You can seek to modify the visitation order by increasing the amount of time you spend with the child.
- Child's desires. The family court will consider their wishes for children above twelve years before issuing a custody or visitation order. If a child wants to spend more time with the non-custodial parent, the issue could be a basis for changes in the visitation order.
Find a Competent San Diego Divorce Attorney Near Me
Child visitation arises during custody battles. If you and your ex-spouse cannot agree on custody issues, the court is determined in family court. Since the court awards custody based on a child’s best interest, there are instances where one parent is denied physical custody of the child.
If you are not a non-custodial parent, you can seek to spend time with your child through your visitation rights. In most child custody cases, visitation orders are specific. These orders indicate the days and times the non-custodial parent spends with the child. Additionally, the rights of the parents during these visitations are scheduled.
Some parents may ignore or violate the order, jeopardizing a child’s safety. However, you can file a motion to modify the order in such a case. Child custody is a serious and sometimes contentious matter that can significantly impact the child’s future. Therefore, seeking legal guidance to navigate the matter is key. At San Diego Divorce Attorney, we offer competent legal guidance to all our clients undergoing a child custody battle in San Diego, CA. Contact us today at 858-529-5150.
