Child Visitation Rights (Parenting Time)

In family law court, the term “child visitation” refers to a court order that grants legal permission to someone who is seeking visitation with a child over another person’s objection. In other words, in family law court, the term “child visitation” means something similar, but legally different, than what “child visitation” usually means to people who are not litigants in a family law case.

For example, if mom allows her child to visit with mom’s neighbors, and there is no legal restriction to mom’s neighbors’ visitation with the child, then the neighbors do not need prior court approval to visit with the child; mom’s permission is sufficient authority in this circumstance. But, mom is not likely to refer to a child’s visit with the neighbors as “child visitation.”

Alternatively, if mom does not allow her child to visit with her child’s father, then the child’s father may seek an order for permission to visit with his child. In this circumstance, father’s legal request for visitation with his daughter is legally referred to as either a request for “child visitation” or a request for “parenting time.”

Note: In family law court, “child visitation” and “parenting time” are synonyms.

Right to Visit Child: If there is no court order to the contrary, parents equally share the rights to, and responsibilities for, their children. The legal rights of a parent include the right to spend time with his or her child (child visitation). Other persons, such as grandparents, legal guardians, adoptive stepparents, and persons who otherwise have a close relationship to a child, might be able to establish a right to visit with a child if the court determines that visitation with the requesting party is in the best interest of the child.

Note: For more information on how to establish a legal right to visit with a child who is not the biological child of the petitioner, see grandparents’ rights, guardianship, stepparent adoption, fathers' rights, and child custody.

Review of Child Custody Law

Child visitation rights are inextricably related to child custody rights. Therefore, a brief review of child custody law is included in this information.

 

There are two types of child custody: legal custody and physical custody. Legal custody refers to a parent’s right to make important legal decisions concerning his or her child's health, education, residence, associations, and more. Physical custody refers to the right to take physical custody of a child for purposes of residency.

Both legal and physical custody can be classified as joint or sole. Joint legal custody means the parents equally share in the rights and responsibilities of making important legal decisions for a child. Sole legal custody means that only one parent makes important legal decisions for a child.  Also, Joint physical custody means that the child lives with both parents, but not necessarily equally (50/50). Sole physical custody means that a child lives with one parent most or all of the time.

Note: The term primary custodial parent refers to the parent who has his or her child more than half of the time. The non-primary custodial parent may, or may not, be entitled to child visitation with his or her child, depending on the circumstances.

Note: Parents do not have rights or responsibilities to child custody and/or child visitation to emancipated minors; however, child support obligations may continue in favor of an emancipated minor in certain conditions. See Emancipated Minors Rights.

Establishing Child Visitation Rights

If the child’s parents are married, child custody and visitation orders may be requested as part of a divorce, a legal separation, and/or a request for domestic violence restraining order.

When the child’s parents are not married, child custody and visitation orders may be requested by filing for a domestic violence restraining order against the other parent and in favor of a shared child, or by filing a paternity suit, also called a parentage action, which is required to establish father’s rights to child custody, support, and visitation.

 

Also, Grandparents, adoptive stepparents, legal guardians, and other persons closely connected to a child may request visitation with the child.

Note: A biological father is not automatically considered a child legal parent. If the child’s father was not married to the child’s mother at the time of their child’s birth, then a biological father will need to first establish his parentage in a paternity suit before he may establish rights to child visitation (or child custody and/or child support).

Caution: Child custody and visitation cases are complex legal matters. Legal forms do not provide information on any of the following important issues: drafting supporting declarations to avoid inculpatory statements, investigations, subpoenaing medical, school, civil or criminal records, examination of witnesses, court procedure and rules, mediation advice, adherence to evidence law, criminal law, and/or family law, and more.

Mistakes are costly, and sometimes irreversible. Family law judges are not lenient on the rules of law and legal procedures just because the petitioner or respondent is not aware of those legal rules. Therefore, a person seeking to establish legal permission to visit a child, or a person objecting to another person’s request for child visitation, should contact a family law lawyer without delay.

Family Law Mediation

If persons cannot agree on child custody or visitation issues the judge will send both persons to family law mediation. Family law mediation is an attempt to resolve any child custody and/or visitation issues with the assistance of a family court mediator. A mediator will attempt to resolve the child custody and visitation issues, or at least narrow the issues to as few as possible.

After mediation, the mediator will report his or her findings to the judge and make a child custody and/or child visitation recommendation for the judge to consider. Persons may disagree with a mediation report and recommendation for various reasons.

730 Evaluations

A 730 evaluation is an investigation conducted by a court appointed expert to help the court better understand a particular issue in a case. In a request for child visitation case, the expert appointed, if any, is usually a psychologist who is called upon by the court to investigate a parent’s ability to care for a child. This might happen when the court suspects that the parent has questionable and negative parenting methods due to mental health issues, substance abuse issues, or other concerns.

Note: The term 730 evaluation refers to California evidence code section 730, which, in part, grants a judge the authority to appoint an expert (730 evaluator or 730 investigator) to investigate issues and make recommendation in cases that are particularly complex.

Best interest of the child

When persons legally dispute child custody and/or child visitation issues a family law judge will make orders that are in the child’s best interest. What is in the child’s best interest depends on many factors, including, but not limited to, the benefit, if any, in maintaining frequent and continuing contact with both parents, the child's age, the child’s health, the child’s safety, and the child’s care requirements (mental or physical disabilities included), the child’s emotional ties to a parent or sibling, a parent’s substance abuse issues, if any (i.e. drugs and alcohol abuse), and more.

Common Child Visitation Orders

Reasonable Child Visitation Order: A reasonable child visitation order allows the parents to choose a child visitation schedule without further court assistance. A reasonable child visitation order is preferred by most parents because it allows the parents to work around their respective schedules. Reasonable visitation orders only work when parents are capable of co-parenting and where the parties do not require the court to micro-manage their parenting time.

Note: A reasonable child visitation order does not mean that the court’s order is reasonable. Rather, a reasonable child visitation order means that the court will leave the parents to decide what visitation schedule is in the best interest of the child.

Fixed Child Visitation Order: A fixed child visitation order is a detailed child visitation order for parents who otherwise could not agree on a visitation schedule.

Note: Fixed child visitation orders often include precise details as to all of the following: a child’s daily schedule, a child's holiday schedule, exact timing and location of child drop-offs and pickups, parent-child phone communication schedule, child travel and/or Child Move Away restrictions, alcohol use restriction orders, child’s clothing and diet details, notification requirements for any change in the schedule and emergencies, frequent contact updates (email, address, phone, etc.), requirement to use Family Wizard, etc..

Supervised Child Visitation Order: A supervised child visitation orders means that a third person monitor (supervisor) must always be present during a person's visit with a child.

The supervisor could be any third person with court approval but usually the court will appoint an unrelated and pre-approved professional supervisor. The parent’s visit with his or her child, as well as the physical exchange of the child, may be supervised. Supervised visitation is ordered when a parent is alleged to have physically or emotionally harmed a child or where the child is at risk of being abducted by the visiting parent.

Note: The supervisor does not have to be a licensed supervisor in order to serve as a monitor to a visit. Any one may serve as a supervisor, so long as the parties agree to a non-professional supervisor. In fact, even the opposing party may serve as a supervisor for non-professional supervised visits (assuming there is no other legal restriction to the non-professional supervisor to serve as such). Of course, if the parties cannot agree on a non-professional supervisor, then the court will only accept a professional supervisor during supervised child visitation.

Virtual Child Visitation Order: Virtual child visitation means a primary custodial parent is required to facilitate child visits via electronic visual communication, such as Skype, FaceTime, etc. Virtual child visitation may be ordered as supervised (supervisor is present during communication), or non-supervised. Virtual child visitation is usually an enhancement to other types of visitation.

No Child Visitation Order: A “no child visitation order” means a person is denied all visitation with a child…even supervised visitation. The following circumstances are usually present in no child visitation orders: mental illness or substance abuse/addiction of the visiting parent, likelihood of visiting parent to kidnap or physically harm the child (i.e. sexual abuse, non-sexual physical abuse, mental abuse, neglect, etc.), visiting parent has previously abandoned the child, or in grandparents' request for visitation with a grandchild cases, where both natural parents object to visitation by the child's grandparent.

Therapeutic Child Visitation Order: A therapeutic child visitation order is visitation with a child that is monitored by a psychologist or social worker who facilitates the visits when a child has negative emotions about the visit. This type of child visitation order is common where one parent alienates a child from the child’s other parent.

Modification of a Visitation Order

A parent filing a request to modify a child custody or child visitation order must prove to the court that circumstances have changed and the previous custody or visitation schedule is no longer suitable, i.e. relocation of either parent, failure of one parent to abide by the current schedule, requests by an older child to modify the schedule, parent no longer addicted to drug or alcohol, etc. For more information, see Modification of Court Orders, &

Contempt of Court.

Note: Willful failure to follow court ordered child visitation is called contempt of court (willful disobedience of a court’s order). Contempt of court can lead to criminal prosecution and/or other penalties and punishments. Of course, complying with a child visitation order necessarily depends upon the parent's ability to make the child available for visitation in the first place. In other words, willful disobedience of a court’s order is contempt of court, but what is considered “willful disobedience of a court’s order” is not always clear.

For example, if dad, who is supposed to deliver his child for a visit with mom, willfully does not make the child available for the visit, then dad is likely in contempt of court. On the other hand, if dad tries his best to make his child available for the court ordered visitation with mom, but dad cannot make his child leave the house, then dad is not likely in contempt of court (no willful disobedience of the court’s order).

Of course, whether or not a party takes sufficient control over a young child, so as to make the young child obey the spirit of the court’s order, is determined on a case by case basis. With older children, parents must make their best effort to compel the visit.

Note: Contrary to popular belief, courts do not automatically give child custody to either a mother, or father, no matter the age or gender of the child.

Finally, a family law judge cannot deny a parent’s right to child custody and/or child visitation based on any of the following: lack of marriage, sexual orientation, physical disability, failure to pay child support, or short absence from the child’s life.

Terminating Parental Rights: If a parent had his or her parental rights terminated by way of either a stepparent adoption, or a juvenile dependency court petition, then that parent may not establish a legal right to child visitation. This is true even where the parent who lost his or her parental rights previously enjoyed a legal right to child visitation. Of course, if there is not legal restriction, a parent who lost his or her parental rights to a child might still be allowed to visit with the child if there is no objection by the child’s legal parent, guardian, grandparent, stepparent, etc.

For more information related to child visitation, or other family law issues, including paternity suits, domestic violence restraining orders (DVRO), juvenile dependency court petitions, child abuse central index listing removal, divorce, fathers’ rights, grandparents’ rights, child protective service (CPS) defense, legal separation, nullity of marriage, and more, contact our family law attorneys  for a free consultation. Our divorce and family law lawyers are available Monday through Saturday, from 7:00 a.m. to 7:00 p.m. for a free case review. Call today!

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