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When partners who have one or more children together file for divorce, the court of jurisdiction where the divorce proceedings take place will determine custody visitation arrangements for that child. If the partners have children together while married, then under the common statutory provision, they both have equal guardianship over that child, and can both apply for custody visitation at the time of separation.

Primarily, the court will determine which home the child should live in according to the ‘best interests of the child’, which requires an in-depth consideration of:

However, an analysis of the child’s best interests often doesn’t give dispositive weight to the stated desires of the child, because most parents possess the right to attempt to repair problems with the child-parent relationship.

What gaining custody means

The parent who obtains custody visitation will control essential decisions regarding the child’s religious upbringing, healthcare, and education. However, a court has the option to choose between various different types of custody visitation. For example, temporary custody gives an individual custody of the child during the separation procedure, sole custody provides one parent with all custody rights, excluding the other partner, and joint custody cases allow for both parents to adequately perform their duties as a primary care-giver for the child in question.

If a marriage has resulted in more than one child, a court has the authority to separate those children, or split custody visitation between both parents if that is in the best interests of each individual child. However, most of the time, courts believe that a child should be able to live with their siblings, for emotional support.

What are visitation rights?

If a court decides to award sole custody to only one parent, then the parent without custody may still have the right to visitation with that child in the absence of extraordinary circumstances. Usually, the decree must contain an explicit prohibition on visitation in order to deny visitation rights for the non-custodial parent.

If the court is convinced by a party that visitation rights for the non-custodial parent would be harmful to the child, or damage that child’s best interests, then the court will be able to deny rights to visitation. Instances that may lead to a court denying visitation rights for the non-custodial parent may include:

  • If the parent without custody had been known to emotionally or physically abuse the child in the past.
  • If the non-custodial parent is suffering from a severe mental illness that could negatively impact or emotionally upset the child.
  • If the parent in question is incarcerated, although incarcerated parents are not automatically denied visitation rights.

If either parent refuses to pay heed to a custody decree, or ignores the court’s decision on visitation, then they can be held in indirect contempt of court which will lead to civil and/or criminal penalties.

 Minella Law Group Can Help

It is important to hire an experienced family law attorney at Minella Law Group with expert knowledge of the legal standards involved to successfully modify your current child custody visitation order. For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.




[image courtesy of unsplash, this article has been updated for 2024]