Custody & Visitation Law

How is Visitation and Parenting Time Decided?

Going through a divorce or break-up is hard enough. If you have children together, the separation can be agonizing. Not know what will happen with the custody and visitation order can leave you feeling pretty stressed out. If you are going through this process, it may help to understand how courts make these important decisions.

Best Interests Standard

As with custody decisions, the court will apply a variation of the best interests standard when making visitation and parenting time decisions. The custody and visitation decisions are often made together for a full application of the state's best interest factors. The factors that are considered as part of the child's best interests are different in each state. To understand the applicable law in your area, it is best to consult with a family law attorney experienced in custody and visitation matters.

Visitation As Part of Divorce Proceeding

If you are getting a divorce, and you have children, the court will need to decide the issues of custody. Many states recognize two types of custody, legal and physical. Other states recognize parent rights to time with their children, but stop short of making custody designations.

Ultimately, what is most important for the court to decide is the basic schedule with each parent that the child will follow. This schedule is decided as part of the custody and visitation decision as a whole, and incorporated into the divorce decree or as an addendum to it.

If the parents are able to agree to the custody and visitation schedule and terms, then they may avoid any court decisions other than approval or disapproval as part of finalizing their divorce decree. It is common for parents to come up with creative options that fit their family instead of risking an uncertain outcome in court.

Visitation After a Break-Up

If you were never married to the other parent, the proceeding will go somewhat differently. The same factors are at issue, specifically the best interests of the child. However, you will not have to consider the other issues that are usually decided as part of a divorce including property division and spousal support.

Depending on what the law is in your area, and if you have not already had paternity established, that may be a part of the proceeding to establish the original custody and parenting time order. Paternity can be established in a few different ways and your local laws govern what the courts will require to meet this requirement.

What is Commonly Included in a Parenting Time Order?

Parenting time or visitation order should be tailored to achieve what is best for your children and best for your family. Any unique considerations that you want to have addressed can be covered in the agreement. The court can make basic decisions, but typically courts tend to shy away from getting too creative without the input of the parents.

While the details covered in your parenting agreement will be specific to your situation, there are a few issues your parenting agreement should address, such as:

  • Custody labels, if applicable, such as who has physical custody and whether it is sole or joint
  • Custody labels, if applicable, for legal custody such as whether it is sole or joint or other guidelines on legal decision making
  • The weekly or monthly visitation schedule that will be followed on a regular basis
  • Any deviations for holidays, summer, vacations, school breaks
  • Who will transport the child to and from parenting time
  • How parents plan to handle any future disputes
  • What steps parents will take to resolve any future changes to the current agreement

Need to Get Court Approval

Once the agreement has been reached, the written version of the parents' agreement must be approved by the court in order to ensure that it is in the best interests of the child. Especially if either party is unrepresented by counsel, the court may schedule a court hearing, during which the judge might ask for confirmation that both parents understand the agreement, that it is in the best interests of their child and that they agree to be bound by it.