Visitation Rights During Separation

By Christine Funk, J.D.

Visitation Rights During Separation

By Christine Funk, J.D.

When a couple separates, they either do so by mutual agreement, or one party simply decides to leave the relationship. This separation may be for a trial period, or it may be done with an eye towards divorce. Many states require married couples to be separated from six months to two years (depending on the jurisdiction) before the couple can legally divorce. During this period of separation, in most situations, both parties have legal access to the child.

Smiling man holding an infant in the air

Parenting Time and Custody

“Visitation rights" is an older term in family law. More states now use terms like “parenting time" to refer to time when the child is with a given parent. How much time a child spends with each parent depends on different factors, such as:

  • Any agreements between the parties.
  • Any mutually agreed upon legal document regarding parenting time.
  • A court order.

Agreement Between the Parties

In some states, couples may file for a legal separation. This is a preliminary document that addresses issues, such as who will remain in the family home, who will pay for the children's health insurance, and who will have what amount of parenting time with the children. A separation agreement is a contract—a legally binding document. Once it is filed with the court, the court will expect the parties to comply with the terms and conditions listed in the document.

A Mutually Agreed Upon Legal Document Regarding Parenting Time

Prenuptial and postnuptial agreements are almost always legally valid when signed. Many of these agreements include parenting time arrangements for each of the parties and any minor children from the marriage. If there is a prenuptial or postnuptial agreement that is legally valid, the terms discussed in the agreement are legally enforceable post separation.

Alternatively, if the couple lives in a state that doesn't formally recognize legal separation, they may still file a joint parenting time agreement with the court. The mutually agreed upon document should include all aspects of where the child will be on each day, including holidays, special family occasions, summertime, winter breaks, and during the school year. Transportation from one house to the other should also be addressed. This paper may also address who bears the cost of childcare, who maintains the children's health insurance, and child support. Then, when properly filed with the court, the agreement becomes legally binding.

A Court Order

In some cases, couples just cannot agree on parenting time and custody. In those cases, where the couple has separated, they can file a motion for a custody determination with the court. The court then holds a hearing, where the parties and other witnesses testify. The court may ask a parenting expert to meet with the children, the parents, and other close friends and relatives, and then write a report and make recommendations regarding a parenting time schedule.

Courts can also consider the child's relationship with each parent, each parent's ability to coparent, the child's extended family connections, where the child lives, and other factors as determined by state law. However, in every state, the court makes its decision by taking into consideration the best interests of the child.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.