Though a divorce may be the right choice for you and your spouse, one party is always going to lose when it comes to your children. Unfortunately, a complete 50/50 split of custody between both parents may not work out due to the children's age, geography, schools, jobs, and a variety of other reasons. Obviously, one parent will then get less time with the children. However, when the court rules you are the non-custodial parent or when you agree to a custody agreement that makes you the non-custodial parent, you still have rights to parenting time with your children. Visitation Rights Being a non-custodial parent means that you still have “reasonable” visitation rights. The term reasonable is not specifically defined and is up to a judge to decide. Reasonable can vary depending on each family's situation. The variables can include the children's age, activities, preference for visitation, the family's geographic closeness, and any other issue either parent raises to the judge during the custody hearing. Restricted Visitation The judge also looks to the child's well being when determining custody. If there is proven abuse, the court could deny visitation or order restricted visitation for the non-custodial parent. Restricted visitation means that the non-custodial parent might not be allowed overnight visitation or may be required to have visitation take place at the custodial parent's home, prohibit visitation when the non-custodial parent is under the influence of drugs or alcohol, require the visitation to take place in a public setting, require the visitation to take place at a home other than the non-custodial parent's home, or require visitation to be supervised by a third party. Relative Visitation Other than the two parents of the child, other relatives do not have a legal right to visitation. Most grandparents, aunts, uncles and siblings have to wait to visit with children during times when the non-custodial parent has visitation. Under limited circumstances however, grandparents or siblings can request a visitation order from the court. These circumstances include if the child's parents are not currently living together on a permanent basis, or if one of the parents has died or has been missing for more than three months.
Modification of Visitation
Once a court has put a visitation order in place, modification of that order can be difficult. After two years have passed, a parent can petition the court for a modification of custody if there is clear and convincing evidence that a substantial change in circumstances has occurred. If one of the parents believes that there is a serious danger to the child's mental or physical health, a parent can petition for a visitation change prior to the two-year mark. Withholding Visitation/Non-Payment of Support Unfortunately, withholding visitation by the custodial parent is not necessarily a reason for the court to change custody. This is because the court looks at the best interests of the child and how disruptive a change in custody would be to the child. A court is more likely to order the custodial parent to follow the visitation order. However, if a custodial parent continually withholds visitation or disrupts visitation, an argument can be made that the custodial parent is intentionally interfering with the relationship between the non-custodial parent and the child and a change in custody needs to be made. Additionally, non-payment of child support is not a reason for a denial of visitation. The court views visitation and child support as two separate issues and will not take child support into consideration for modifying visitation. Child custody and visitation issues can be a confusing and stressful time. Our Naperville family law attorneys are committed to helping you legally understand your decisions. If you are currently deciding child custody and visitation issues, please contact us today. We can help you understand the law and make a decision that is in the best interest of you and your children.