Divorce can be a trickier business than you might realize if you’ve never been down the road before yourself. For example, we so often hear about visitation rights. Who most often gets primary custody of a child? The mother? The father? No matter what, one parent usually has to take a step back in order to let the other parent keep the lion’s share of these responsibilities. That means visitation. What happens to relationships with other family members? If the mother gets sole custody, and the father is cut out of the loop, do the paternal grandparents have rights? It depends on the circumstances, and local laws are important as well.
In California, there is at least the possibility that a grandparent could gain visitation rights with a grandchild. What matters most is the relationship between the grandparent and the child before the divorce took place. If the court can establish that a bond existed between child and grandparent, then naturally the legal system would do everything in its power to see that bond continue to strengthen through to adulthood.
In order to prove that such a bond exists, though, it must also be proved that a continued relationship with the grandparent would benefit the child in the future. This isn’t always an easy thing to do.
What really complicates the matter, however, is what the parent with custody wants for his or her child. The court is granted the authority to perform a balancing act in the interest of doing so. Even if visitation is in the best interest of the child, the decision-making rights of the parent will often still take priority.
It should be mentioned that these rules are contingent on the status of the couple in question. If the couple is still married, then visitation rights will likely not be granted. If the parents are married but separated and living apart, then the option is still there. If a grandparent has the support of a parent, then the option is still there. If neither parent is currently guardian to the child, then the option is still there.
Those are the basic rules governing the issue, but as you can see it can be a convoluted mess to navigate these laws and restrictions without a lawyer. In order to begin the process, it is strongly recommended you seek legal counsel beforehand. When you have an idea of what you would like to do, then you can petition for visitation rights with the court overseeing custody. Because it isn’t always obvious where to file this petition, a lawyer can help shed some light on what would otherwise feel like an impossible situation.
Divorce with children is never a smooth or amicable situation. Unless there is a joint custody arrangement, the battle for custody and visitation can often be messy.
There is little question that both parents love their children to the end of the world and back, but as there is not King Solomon to split children into two, there is often the difficult decision in family court to determine who will be the custodial parent and who will be the non-custodial parent and how visitation will be worked out so both parents have a reasonable opportunity to be in their children’s lives.
The Visitation Agreement
Once a deal is brokered in regards to custody and the non-custodial parent is established, a legally binding visitation agreement is devised, where the court puts into writing the visitation schedule for the non-custodial parent as the result of negotiation between the parties.
The agreement spells out the dates and situations in which the non-custodial parent will be allowed (if not required) to have visitation with the children, and it is legally binding in that both parents must uphold their ends of the deal. If the non-custodial parent is to have the children from 5 p.m. Friday until 10 p.m. Sunday every weekend, then it’s the custodial parent’s legal duty to ensure that the children are there on time on Friday; and it is the non-custodial parent’s job to make sure the children are delivered back on time on Sunday. Even a small transgression (where a parent will be late and does not communicate it to the other parent) can be considered a violation of the agreement.
Justifiable vs. Legal
But what are the consequences if violating that agreement? Or what are the consequences if one parent has a sense that the child is not safe with the other parent? Can a parent withhold visitation for a justifiable reason?
Unless the visitation agreement has stipulations that allow for justifiable withholding (provable child abuse or neglect, for example), there is no legal avenue in which visitation may be withheld. When it comes to these agreements, there is a difference between justified reasons for withholding and legal reasons for withholding.
Fight for Your Rights
No matter which side of the custodial fulcrum you are on, you have rights as a parent to be present with your children, even if it is not as often as you might wish. Honoring the terms of the visitation agreement is essential, and so is resisting the temptation to withhold visitation for any reason. If you need a resolution in your case, there are legal options available to you. Contact one of our family law attorneys to discuss your parental rights and ensure that the visitation and custodial agreements are complied with on a regular basis, for the sake of the children.