A parent without legal custody has child visitation rights, at least in most cases. That’s the short answer to what rights does a parent without legal custody have? Many parents make bad decisions about their own lives, as well as their childrens’ lives. The judge awards limited or no legal custody (power to make decisions about the child’s welfare) in these cases.
Physical custody, which in these cases is usually visitation rights for a non-custodial parent, is a completely separate matter. The child’s best interests usually include consistent and meaningful contact with both parents, especially if the state has a co-parenting law.
In the old days, the non-custodial parent had visitation rights at the whim of the custodial parent. Today, courts issue orders that include detailed rules and specific visitation periods. These detailed orders might include supervised or limited visitation. More on that below.
Who Can Get Visitation?
Physical custody rights are separate and independent from legal custody rights. So, parents without legal custody are entitled to visitation. Many states also allow grandparent visitation. But a 2000 Supreme Court case, Troxel vs. Granville, sharply limited grandparent visitation rights.
As with all other decisions involving children, the court considers the best interests of the child, as opposed to the best interests of the party requesting visitation rights.
How Do Courts Decide Visitation Schedules?
The system strongly encourages parents to settle visitation scheduling matters out of court. Emotional legal showdowns often leave lasting scars on children, and adults as well.
Because the presumption in favor of agreed settlements is so strong, judges almost always approve them, as long as they’re consistent with basic best interests principles, such as:
- Parent’s Preference: Usually, parents express their preferences indirectly and unintentionally. Parents who show little interest in everyday child rearing matters usually make poor primary custodial parents.
- Child’s Preference: Some states have age cutoffs (e.g. children over 12 may express written preferences). Some states don’t have such cutoffs. In all states, the judge has the final say.
- Parent’s Ability: Many times, the spirit is willing but the flesh is weak. Adults frequently have disabilities, whether natural or self-inflicted, that prevent them from being good parents.
- Child’s Needs: On a similar note, not all parents have the ability or desire to deal with a child’s unique needs. Note that there’s a difference between the child’s needs and the child’s wants, or a parent’s wants.
When approving an out-of-court settlement or during a trial, the court usually considers testimony from people who know the child (such as teachers), the parents, and professionals like psychologists, social workers, and healthcare workers.
Parenting Timeshare Divisions
In the past, parents without legal custody of their children usually visited their children every other weekend. The parents usually split major holidays. Courts usually added sporadic additional visitation, like a few hours on a parent’s or child’s birthday. Such orders resulted in about a 70-30 timeshare division.
In the early 2000s, mostly as a response to Troxel, most states began enacting co-parenting laws. As a result, judges usually prefer a parenting timeshare division that’s closer to 50-50. So, parents without legal custody are usually entitled to additional visitation. For example, weekend visitations might start on THursday night and end on Sunday night.
A schedule that permits noncustodial parents to pick up children from school on Thursday and drop them off on Tuesday morning is even better. This setup extends parent-child contact and reduces parent-parent contact.
How Does Supervised Visitation Work?
Most people would agree that a lackluster mom or dad is better than no mom or dad at all. Nevertheless, children need additional protection in these situations.
SUpervised exchanges are the first level of supervised visitation. People are normally on their best behavior if they know other people are watching. A public exchange, perhaps at a nearby McDonald’s, also reduces the chances the parent will be drunk or stoned.
Informal supervision is the next level up. A parent without legal custody may visit a child if a third party, like a friend or relative, is present the entire time. This level of supervision is appropriate if the child may suffer minimal physical or emotional harm if left alone with the parent.
Usually, formal supervision is the last resort. Most Child Protective Services offices have playrooms where dangerous parents can at least spend some time with their children.
Visitation Modification and Enforcement
A few final words about a parent’s right to modify or enforce a child custody agreement, even if the parent has no legal custody of the child.
If the disability that prompted limited visitation is a substance abuse habit, and the parent overcomes that addiction, the judge may ease or terminate visitation restrictions.
Sadly, some custodial parents take matters into their own hands and deny visitation. The judge usually steps in if a custodial parent consistently denies visitation.
Incidentally, just like legal and physical custody are separate issues, child custody and child support are separate issues. Parents cannot use child support delinquency as an excuse to deny visitation.