Can a Parent That Abandons His Family Get Visitation Rights?

By Teo Spengler

Abandonment means different things in different contexts. Sometimes one parent reacts immaturely to marital problems by running away from home and staying away. Although those left behind will regard this behavior as abandonment, a court will likely determine that some type of visitation is in the long-term best interests of the child. A parent convicted of criminal child abandonment will have a more difficult time winning visitation rights.

Child Custody and Visitation

When a marriage ends, arguments about custody and visitation of the children can begin. A child can only live at one home at a time so each parent will likely see less of the child than did during the marriage. While physical custody generally refers to the children's living arrangements after a divorce, visitation describes the time that a parent who does not have custody gets to spend with his kids. If a divorce decree does not mention visitation, the law presumes that the noncustodial parent is entitled to reasonable visitation, and only if the judge specifically orders no visitation is a parent denied the right to see his children.

Factors for Visitation Rights

State statutes vary regarding custody and visitation, but most make the best interests of the children the central factor in resolving these issues. The best interests of a child depend on her age as well as the family history. Generally, courts adhere to the principal that it is good for children to know and spend time with both parents, so visitation is almost always granted absent factors that suggest it would be harmful to the children. The court can tailor visitation rights to suit the circumstances or deny visitation when appropriate. Some type of visitation arrangement is generally awarded even if the parent has been absent for a long time because parents inherently possess the right to attempt to repair the parent-child relationship.

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Types of Visitation

The court often sets up a detailed schedule for visitation, specifying which parent will have the children for weekends and holidays throughout the year. This prevents parental bickering and gives all parties a chance to plan around the schedule. A general order for reasonable visitation only works when parents are on amicable terms and cooperating. Sometimes the court orders supervised visitation, which means that the parent can see his children but only in the presence of another adult. Courts may award this type of visitation when a parent has been missing from the children's lives for a long enough period that they require time to get to know one another. The parent who has been out of contact with his children for months or years is a good candidate for supervised visitation.

No Visitation

A court may deny visitation if it determines that the child could be harmed by any contact with the parent. Essentially, this constitutes a finding that the best interests of the child is not to have any interaction whatsoever with that parent. For example, if a parent has a history of physically or emotionally abusing a child, a judge may well deny visitation rights. The fact that a parent has been incarcerated or convicted of a crime does not necessarily doom a request for visitation; all factors are considered before the court makes the determination.

Criminal Abandonment

If you have been convicted of criminal child abandonment, your chances of visitation depend upon the nature of the offense. Criminal child abandonment can be a felony or a misdemeanor. States vary widely in the types of behavior that are included in this offense; it can include anything from leaving the children alone at home with an elder sibling while the parent goes to work, to leaving an infant in a garbage can, to child abuse. A court will likely look at the facts leading to the abandonment conviction before making a decision about visitation.

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Terminating Visitation Due to Incarceration



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New York Statute for Visitation

The best interests of the child is paramount in determinations of child custody in New York. To that end, it is preferable that parents reach a voluntary agreement instead of going to court. However, if they cannot reach an agreement, the court will make a determination as to both legal and physical custody, with the nonresidential parent generally provided visitation rights as part of sole custody orders. Further, the court may be petitioned when issues with visitation arise and the parents cannot agree.

How Is Child Custody Decided In Divorce?

Every state defers to a concept called the “best interests of the child” when deciding custody issues. But different states interpret this guideline in different ways. As a parent, you might do your best for your child every day, only to find that a judge disagrees with your assessment. In the end, it comes down to the opinion of that judge and what he and his state believe to be the most important factors in a child’s life. But some standard tenets apply.

Information About Visitation Rights

When you and your spouse divorce, it's unlikely that your child is going to live with either of you 24/7. The best scenario is that you'll have joint physical custody and your child will divide her time close to equally between your homes. Otherwise, she'll live with one of you full-time and the other parent will have visitation rights. Often, when parents separate and one continues to live in the marital home, custody will remain with her after the divorce to maintain consistency in the child's life. Courts generally award the other parent frequent, meaningful or reasonable visitation, but these terms can be vague and leave noncustodial parents confused.

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