Visitation Rights During Separation

By Victoria McGrath

No parent possesses a legal right to deny the other parent visitation rights when they are informally separated, yet still married. Married parents share equal parental rights over their child during a separation, unless a family court issues a child custody order to the contrary.

Separation, Legal Separation and Divorce

Many married parents separate prior to filing for legal separation or divorce. During a separation, both parents share custody of the child and each parent has a right to spend time with the child and visit without any legal restrictions. In some cases, one parent moves out without making plans to continue to care for the child and the other parent maintains physical supervision of the child. A parent who has physical possession of a child during an informal separation does not have the right to deny the other parent equal custody or shared parenting time with the child. Either parent can file a petition for child custody and support and request that the court assign one parent as the custodial parent and the other as a non-custodial parent with visitation rights.

Court-Ordered Custody and Visitation

The court can issue an emergency order for child custody, a temporary custody order or a custody and support order during legal separation or divorce proceedings. Child custody laws vary a little from state to state. For an emergency court order, you must typically show that any contact with the other parent presents a serious risk of harm to the child. A non-emergency, temporary court order allows you to establish child custody and visitation terms until the court hears the legal separation or divorce case at trial and issues a more permanent court order. Even a permanent child custody order can be modified later if circumstances substantially change or one parent can show the judge that the other parent cannot properly supervise or care for a child under his custody. In cases where a parent's lack of fitness is established, the judge can order restricted or supervised visitation.

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Right to Visitation

The court can award legal custody or physical custody to both parents, sole physical custody to one parent and visitation to the other, or sole legal custody to one parent. Legal and physical custody don't necessarily go hand-in-hand. When parents share physical custody, both have roughly equal parenting time. When parents share legal custody, they jointly contribute to important decisions regarding the children. This has no effect on physical custody terms. A parent with joint legal custody may have physical custody of the child less than 50 percent of the time. A non-custodial parent possesses a right to visitation even if the child custody order does not include a specific visitation schedule. In extreme cases when the court denies the non-custodial parent visitation rights, usually due to a lack of fitness, the court order must express a clear prohibition of visitation. It's also possible for a court to order supervised visitation, with an adult third party present to oversee the safety of the child.

Custody and Visitation Agreement

You and your spouse can negotiate a custody and visitation agreement during your separation without attending a custody hearing. You can submit a parenting plan to the court that includes a specific visitation schedule, including weekday, weekend and holiday time. If the court approves this parenting plan, the judge can incorporate the agreement into a custody order. The court must find that the custody terms and visitation schedule are in the best interests of the child. Each state uses the best interests of the child as a guiding principal when determining which parent will have custody. The court considers several factors, including the child's bond with each parent and each parent's ability to care for the child in a safe and healthy manner. Courts can typically deny visitation based on a history of emotional abuse, physical abuse or severe mental illness.

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