Le Knapp: Father’s Visitation Rights

Divorced parents who survive the rigors and horrors of custody litigation are usually surprised to discover that the end of courtroom hostilities brings little peace of mind and no real closure. No matter what a judge’s decision asserts, parents and children remain linked by a natural bond as old as the earth. A court’s attempt to redefine family relationships rarely brings about the changes in behavior and attitudes necessary for reconstruction of a viable family unit. A new family structure can’t be formed until parents and children accept the reality imposed by the court’s custody orders and adapt to the changes in their lives that will inevitably occur.

Unless extreme circumstances have been proven, no family court is likely to completely exclude a parent from the lives of his or her children. An award of sole custody to one parent is almost always accompanied by a grant of visitation rights to the other. When a judge concludes that both parents are competent and caring, an order mandating liberal visitation for the noncustodial parent is becoming more and more common.

In Utah, when a parent is awarded sole or primary physical custody of children in a divorce action, family law provisions should attempt to protect the other parent’s access to the children by granting (and enforcing) “visitation” rights. A family court judge can deny a noncustodial parent’s visitation rights only when the court has strong evidence that visitation would be dangerous or detrimental to the child. If you are fighting for visitation rights to your children, consult with an experienced Utah attorney.

Family courts generally have avoided establishing specific standards that, if met, would constitute adequate visitation—and, thus, adequate parental access. How often and how long a noncustodial parent can visit children is typically determined on a case-by-case basis. Usually, the court orders visitation at “reasonable times and places” and asks the parents to work out the details. This open-ended instruction is intended to allow parents a degree of flexibility in meshing now separate household schedules. If a divorcing couple is unable to agree on a visitation schedule, the court can order a fixed schedule.

Interference

Under Utah law, interference with visitation can be (but is not often) regarded as contempt of court and can result in fines, forfeiture of child support, and sometimes incarceration.

Unlawful interference with a parent’s right of access to a child occurs when one parent wrongfully deprives the other of court‐ ordered custody or visitation privileges.

In a Utah divorce case, if you lose your custody dispute, visitation will be your only access to your children. Forging and maintaining a viable, meaningful parent-child relationship through visitation is often very hard. It can be done, but it is not easy.

While remaining involved in your children’s lives is at least possible with a reasonable visitation schedule, the limited time, artificial setting, and erratic frequency that characterize some visitation arrangements are a prescription for disaster.

Keep in mind that a court order awarding sole custody of the children to their mother does not terminate your parental rights. In conjunction with its custody decree, the family court that decides your custody case will almost always issue a visitation order.

Some judges may attempt to dodge the visitation issue completely by awarding “reasonable visitation” (no specific schedule is set) to the noncustodial parent. This cavalier dismissal of a parent’s right to maintain specific and regular access to his children often places a noncustodial father at his ex-spouse’s mercy. He may see his kids if and when she feels like allowing him to do so. “Reasonable visitation,” the definition of which depends on whom you ask, almost always results in conflict, confusion, and a renewal of litigation.

Your attorney should ask the court to set specific visitation provisions before the custody judgment is finalized. If the schedule you request places no undue hardship on the custodial parent, it will likely be granted. Very few judges will allow an adequate parent who loses a custody dispute to leave court empty-handed.

Visitation Schedule

In the order that ends a custody contest between two competent parents, a responsible, compassionate judge (and they do exist) will affirm the noncustodial parent’s access rights and instruct the parties to formulate a visitation schedule that respects those rights. If the parents can’t agree on visitation, or if the court finds visitation terms proposed by the custodial parent unacceptable, a specific visitation schedule will likely be imposed.

Generally, a father with a typical court-ordered visitation schedule in Utah can expect to see his children:

• Weekends – Every other weekend is the traditional award, with the weekend defined as the period beginning Friday afternoon and ending Sunday evening.

• Midweek- If the parents live close to one another, visitation on one day during the week (from after school to bedtime) is now a common order.

• Holidays – The noncustodial parent will usually have the children on alternating holidays. Holidays are defined either as federally recognized holidays or as days treated as holidays by the children’s school. Birthdays (the children’s and the parents’), Mother’s Day, and Father’s Day are usually dealt with separately.

• Vacations During the School Year – Shorter vacations and extended holidays typically are split evenly. Spring break is spent with one parent one year, the other the next. Whichever parent has the children for spring break usually receives a smaller slice of Christmas vacation for that year.

• Thanksgiving and Christmas – Sometimes Thanksgiving and the day after are alternated between parents; sometimes the children spend part of turkey day with one parent and the evening with the other. Most judges split Christmas into Christmas Eve and Christmas Day, and, travel conditions permitting, require the parents to arrange Christmas festivities accordingly.

• Summer Vacation – The noncustodial parent can usually expect to have the children for four to eight weeks each summer.

In addition to visitation specifics, standard access provisions of a typical custody decree permit frequent mail and telephone communication between the noncustodial parent and the children. More often than not, the court will also require the custodial parent to immediately notify the noncustodial parent of all medical emergencies involving the children. Guaranteed access to the children’s grades and other educational information is another common access order.

If you are the noncustodial father, you will have to make a concentrated, consistent effort to keep your rightful place in the lives of your children. To the extent possible, restructure your work, vacation, and social schedules to accommodate your children’s visits with you.

Custody Modification

A father with visitation rights can seek custody modification. Generally, a Utah court’s custody orders can be modified only if it can be proven that there has been a change in circumstances that substantially affects the children’s best interests. The modification process has two distinct phases. First, a change in parental behavior or environmental factors that have created a serious impact on the children’s lives must be demonstrated. Second, the court must decide which parent can best serve the children’s interests based on the changed circumstances.

If non-custodial father with visitation rights can show that circumstances have substantially changed, custody modification proceedings generally focus on the same standard that governed the original custody litigation: the best interests of the children. As they did in the initial custody contest, each parent again attempts to prove that he or she is the better custodian. The same evidence used to demonstrate the gravity of changed circumstances can be offered for the court’s consideration in identifying the children’s best interests. Inertia is among the most powerful forces in family law. Judges tend to favour the notion that children should not be taken from a familiar environment unless there are compelling reasons for a custodial change. Stability is valued so highly that a noncustodial parent seeking modification of a court’s original custody decree must prove that the proposed change is necessary to ensure the children’s health, safety, well-being, or development.

A noncustodial father contemplating custody modification litigation must analyze the interplay of several factors before filing suit. Accurate and objective answers must be formulated for questions like these:

• If a child’s preference is the basis for the custody transfer request, are the child’s motives valid or manipulative? Is the child truly upset or endangered by the custodial mother’s behavior, or is the child playing one parent against the other for personal reasons? Is the child’s need to escape the current environment real or an attempt to blackmail Mom?

• Can dangerous, negligent, or otherwise unacceptable behavior attributed to the mother be corroborated by independent witnesses or documentation?

• Can social workers, psychiatrists, law-enforcement personnel, physicians, or abuse “validators” substantiate suspicions of physical, emotional, or sexual abuse?

• Does the father’s definition of unacceptable or inappropriate parental behavior correspond with the values and standards accepted by the court and the community?

• If sufficient cause to consider a custody modification is demonstrated, what evidence can the father present to support his contention that he can provide the children a healthier, safer, richer, or more stable life?

• Will reopening custody litigation expedite or hinder the post‐ divorce reconstruction process?

When the claim that a custodial mother is unfit is the basis for a father’s modification petition, a consistent pattern of abuse or negligence must be proven. Photos, detailed entries from the father’s journal, and the child’s own testimony may all prove useful in meeting this requirement. If his child is in immediate danger from a custodial mother, the father need not (and should not) wait for the court to schedule a custody modification hearing. After filing a “child in need of care” action with the appropriate state agency, the father should immediately seek the court’s intervention on behalf of the child.

If long-distance relocation of the mother and children is the issue, extensive analysis usually is unnecessary. The father must seek modification of custody and visitation orders to maintain contact with his children. The stability factor that typically favors the custodial parent changes shape in relocation cases. The lives of the children will be disrupted whether they move with the custodial parent or change residences to live with the parent who is not going anywhere.

Visitation Modification

Substantial changes in circumstances can also affect visitation provisions of the initial divorce decree. Visitation may be reduced, restricted, or eliminated entirely if the noncustodial parent is convicted of a crime, exposes the child to overt sexual conduct, neglects or abuses the child in any way, indulges in drug or alcohol abuse, or involves the child in hazardous or unacceptable activity. Speak to an experienced Utah attorney to know if you can modify your Utah visitation order or if the custodial parent seeks to restrict your visitation rights.

Under Utah law, the court, not the custodial parent, decides what constitutes harmful behavior. However, custodial parents frequently attempt to reduce or restrict visitation because they find the noncustodial parent’s visits to be “disruptive” to the household routine, or because the children return from visitation “excited, emotional, and unable to settle down,” or because the custodial parent disapproves of the children’s activities during visits.

None of these complaints is likely to persuade an experienced family court judge to alter a visitation order. The noncustodial parent’s access rights should supersede any minor inconveniences caused by visitation.
Finally, unless the visitation parent encourages or condones illegal or unsafe activities, what the kids do during visits is a matter left entirely to the noncustodial parent’s discretion (unless there is a court order to the contrary).Generally, courts will completely eliminate visitation only in extreme cases (the noncustodial parent is unfit, dangerously unstable, violent, and so forth). Reduction or restriction of visitation is more common. A frequently cited justification for the reduction of parental access is the unavailability of the noncustodial parent. If children spend all (or most) of their visitation time with baby-sitters or if the noncustodial parent consistently fails to appear for scheduled visits, many courts impose a “use it or lose it” edict. Unless the visitation parent’s level of commitment to the children immediately increases, his or her time with the children will be severely reduced or restricted. When a noncustodial parent’s residence is found to be an unsuitable environment for children (a plywood cubicle behind the furnace in the basement of an adult bookstore, for instance), visitation may be restricted to more appropriate venues (Grandma’s house, acceptable public areas, and the like).

Noncustodial fathers seeking expansion of visitation should first attempt to negotiate the changes they desire. If an agreement with the custodial mother can’t be reached, the father’s petition for modification should include a comprehensive recitation of all factors being relied on to justify the request. The benefits that expanded visitation offer to the children (not the father) must be stressed.

If you are a divorce father seeking visitation rights to your child, speak to an experienced Utah father’s Rights Attorney.

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