Biological parents have a right to seek child visitation or child custody. This is true regardless of whether the child’s parents were married when the child was born. Like other child custody decisions, courts use the best interest of the child to decide disputed child visitation or custody cases involving unmarried fathers. Unless evidence indicates otherwise, courts making child visitation decisions presume that involvement of both parents benefits the child.
First Step: Establishing Paternity
Fathers who were not married when their child was born must legally establish paternity in order to gain access to father’s rights. Often, this simply means both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court, either at the time of the child’s birth or afterward. In disputed paternity cases, a legal process including DNA testing will conclude with a court order stating whether the man in question is the child’s biological father.
Once paternity is established, a father may pursue child visitation or other custody rights. Many states offer simultaneous filing for recognition of paternity and for visitation or custody rights.
Child Visitation and Child Custody Agreements
Either before or after a legal process has begun, many parents negotiate a parenting agreement (also called a parenting plan). A parenting agreement can include a wide variety of details including which parent will have primary custody, specifics on the other parents visitation periods, particulars on which parent will make decisions regarding the child’s education, health care or religion, as well as procedures for the handling of potential changes to the arrangement.
Court Orders on Child Visitation or Custody
Either after securing a parenting agreement, or if unable to agree, either parent may petition the court for child visitation or custody help. Parents who can agree to a parenting plan may file it with a court, asking the judge to approve and incorporate it into a court order on visitation and/or custody. Having the agreement become part of a court order allows either parent a direct way to enforce his or her parental rights.
It is rare for fathers to win sole custody of a child already being raised by the mother. To do so, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child’s primary caregiver. Child visitation or shared custody rights, however, allow many unmarried fathers to play a consistent role in their children’s’ lives.
Parents who are denied custody of their children are often entitled to generous visitation rights, unless visitation with the non-custodial parent does not serve the child’s best interests. Parents should remember that the child’s welfare is the court’s primary concern when considering custody and visitation matters. In some cases, parents may be denied custody and visitation rights. Some of the reasons why a parent’s visitation rights might be denied by the courts include:
- The parent has not exercised his or her visitation rights in the past
- The parent no longer has contact with the child
- Because the court finds evidence of domestic violence that was directed toward the child, the child’s parent, or a sibling
- The parent has a history of alcohol or drug abuse
- The parent’s parental rights have been terminated
Parents who have been denied visitation may have the opportunity to later have their visitation rights restored. In some cases, the court will spell out an action plan that includes taking parenting classes or other steps toward restoration.
If you are denied visitation by the court, ask about the possibility of working toward restoration of those rights over time.
After visitation has been established, the court may issue a visitation schedule which gives a detailed account of when parents can exercise visitation rights. The visitation schedule may allow non-custodial visitation rights on:
- Weekends or alternative weekends
- One or two weeknights (weekly or on alternating weeks)
- Summer vacations
In general, it’s always best for parents to determine a visitation schedule together. However, if parents are unable to communicate with one another, a family court judge will step in and determine an appropriate visitation schedule on behalf of the children.
Types of Alternative Visitation Rights
- Restricted visitation rights: Custodial parents may want to restrict visitation for non-custodial parents for several reasons including medical concerns, the age of the child/children, or in situations when the non-custodial parent is or has been institutionalized or incarcerated.
- Supervised visitation rights: The court may order supervised visitation rights, which includes court-ordered contact between a parent and a child that is supervised by another person. The court will generally order supervised visitation rights in situations where the courts believe the parent could pose a physical danger to the child.
- Overnight visitation rights: Some custodial parents may be reluctant to allow a non-custodial parent to have a child for overnight visits. In such situations, the court will determine whether the custodial parent has legitimate concerns and will subsequently reach a decision regarding overnight visitation accordingly.
- Virtual visitation rights: The court may also allow the non-custodial parent to participate in virtual visitation with the child or children. In such cases, the custodial parent shall be required to facilitate virtual visits via Skype, FaceTime, or another video service.
Modifying Visitation Rights
If the current visitation rights are no longer desirable for you (or for your children), you can request a modification of visitation rights by starting a case in family court. Additionally, a parent should communicate openly about possible changes to the visitation schedule with the child’s other parent.
For more information about visitation rights, contact our office to speak with a qualified attorney.
Would You Like More Information?
If you would like more information or wish to discuss your case with an attorney, please contact us.
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