Denial of Visitation

denial of visitationOver the past few months I have been frequently asked if a spouse can deny visitation to their divorced partner. In most cases the answer will be no. New York Courts have taken the stance that visitation is in a child’s best interest and that children can benefit immensely if they are guided and nurtured by both of their parents. Typically, the non-custodial parent has the right to significant and reasonable access to their child. What exactly does this mean? In the event that the parents live close to one another, the non-custodial parent should have visitation each week and a part of the child’s summer vacation. Currently there is no clear-cut rule as to how much visitation is significant and reasonable.

Despite what was previously mentioned, under certain circumstances a parent can receive the denial of visitation. Having said that, the parent seeking to deny visitation has to prove that the visitation is detrimental to the welfare of the child, before the court will order the denial of visitation. The court will always take into account the child’s best interests, not the best interests of the parents, as is the case with almost every child custody battle. The court will not entertain a fight between parents that turns into a visitation battle, saving a parent denied visitation without proper approval from the court.

When will the court deny visitation? The denial of visitation may be approved if the behavior of the parents genuine worries about the safety of the child. For instance, if there is strong evidence of neglect, abuse, or mental illness of the parent, the court may deny visitation due to the welfare of the child. However, the court will always look for a less drastic option before deny a parent of visitation rights. For example, the court may order that the visits be supervised. Monitored visits can be sufficient enough to alleviate any worries by the custodial parents and the court.

denial of visitation child custody, divorce attorneyIn the case that you have been denied visitation or there are substantial changes in circumstances, your initial divorce decree isn’t always the final word. Depending on the circumstances, you could always request the court to adjust the visitation agreement, or in must circumstances, implement the visitation rights which you have already agreed upon.  The courts can look at the change in conditions, or in the case of an enforcement proceeding, the reasons why a visitation was withheld and prepare a ruling, once again, determined by the welfare of the child.

LEARNING POINT: If you decide on a separation agreement, obtain the services of a legal professional to help guide and preserve your rights pertaining to visitation.  Visitation is more than one or two weekends a month and a few days during the week.  Who gets the child on their birthday?  What about winter recess?  How many weeks during the summer does the noncustodial parent get custody?  Can I take my child out of the country for summer break?  It is easier to work out an agreement with counsel on your side, than going at it alone and requesting that the court modify the agreement you have in place.

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