Child Visitation


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Child Visitation

Family Code §3100(a) provides that the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. The question, therefore, becomes what is reasonable and what is in the child’s best interest. For the answers to these questions the court must look at each case on a case by case basis. Everyone’s case facts and family dynamics are different.

Generally, and unless there is evidence to the contrary, it is in the child’s best interest to be with each parent as much as possible. If one parent is working and the other is not, then it might be reasonable to allow the working parent to have visitation with the child during the majority of his or her off work time.

If both parents are working, then a share plan must be devised taking into consideration the work schedules of both parents so that there is a fair sharing of the child. If the parties do not live in close proximity to each other or to the child’s school, then the traditional alternate weekend visitation plan might be more practical. It is typically best to share all school vacation periods and major holidays equally, again, unless there is some reason why this does not make sense. For example, it does not make sense to share the entire Christmas/winter school vacation period equally if one of the parents is away traveling and unavailable for the children.

Every family has its own needs, facts and circumstances. We can usually draft a visitation plan and a holiday and vacation plan to take most of those issues into consideration. Of course, when a family is split, sharing becomes problematic and unless the parents handle it appropriately, the children are the victims of the dispute.

The court does not want the children involved in the custody and visitation disputes of the children and whenever these can be avoided then it should be avoided. Young children should not be asked where they want to live or with which parent they want to live. This is an adult decision and such a burden should not be placed on the children. Even the older teenagers should not be drawn into these family law matters. They older children may be called upon to participate more than the younger children and as the kids get older their stated wishes will be heard and given consideration.

Family Code §3100(a) also provides “…In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the child.” This visitation request by a non parent comes with a very high burden of proof to show that visitation with a non parent is not only in the child’s best interest but further, that the lack of visitation would be detrimental to the child. The requesting non parent party must also overcome the substantial constitutional issues as regards the parent’s constitutional rights to make decisions on behalf of their children.

Family Code §3101 provides for step parent visitation and Family Code §3103 deals with grandparent’s rights and visitation. Both codes again place a very high burden of proof to show that such non parent visitation serves the best interest of the children and does not unreasonably infringe of the constitutional rights of the child’s parents.

When the parents live a long distance from each other such that regular and frequent contact with both parents is not possible, then quite often the non custodial parent will be granted a greater percentage of holiday and summer vacation time with the child to help balance out the contact. Again, this depends on the work schedules, school schedules, etc. of the parties involved. Often, when one parent has been granted a move away request and moves out of state with the children, then the non moving parent may actually be awarded all but two (2) weeks of the summer vacation time, all of Spring Break and a sharing of Christmas. Of course, the court, the mediator, or the parties may draft a completely different plan specific to the individual needs of the family.

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