How Does the Court Determine Visitation Rights?

Usually, children benefit when they spend meaningful amounts of time with each parent.

The short answer to this question is that the best interests of the child determine child visitation rights. There is a significant difference between the best interests of the child and the best interests of the parent.

Move-away modifications are a good example. Such relocations are always in the best interests of the parent. An economic opportunity, like a promotion, is usually at stake. But the relocation may not be in the best interests of the child, as it means a move away from everything and everyone that is familiar.

So, in both initial determinations and subsequent modifications, both the filing and non-filing spouses have significant legal rights and have a large say in the process. A good Brandon family law attorney amplifies these voices so the final order accurately reflects the best interests of the child.

Best Interest Factors

Most good parents readily agree that matters like residence and time sharing should be in the child’s best interests. However, when it comes to specific residential and time-sharing orders, even the best parents often vehemently disagree. Therefore, Florida law breaks down a child’s best interests into several factors, such as:

• Current Arrangement: No child visitation order is perfect. But, in most cases, the devil you know is better than the devil you don’t know. So, once again, in most cases, if the current arrangement is functional, most judges hesitate to change it. Technically, the burden of proof in these matters is rather low. But the burden of persuasion is usually quite high.
• Parent’s Preference: Many parents unknowingly and unwittingly express their visitation preferences long before a divorce is filed. If Dad shows little interest in school plays and baseball games during the marriage, his chances of obtaining anything beyond minimal visitation rights in a divorce are remote.
• Parent’s Ability: Sometimes, the spirit is willing, but the flesh is weak. Some parents do not have the physical or emotional ability to spend quality time with their children. Others have destructive disabilities, like an addiction to alcohol or drugs. Aside from relocations, the onset or removal of a parent’s disability might be the most common basis for a motion to modify visitation or custody.
• Child’s Preference: Why is this factor so low on the list? We are glad you asked. Florida law gives judges almost absolute discretion to consider or ignore a child’s preference. Additionally, this factor rarely applies. Many children do not express preferences because they do not want to take sides.

Most courts weigh these factors and other child visitation factors equally. A history of family violence is different, especially if the child was a victim or a witness. A recent history of domestic violence is usually a visitation dealbreaker. A remote history of family violence (e.g., an incident with a previous family) is a strong factor but not a dealbreaker either way.

Possible Options

In most cases, a Brandon family law attorney determines the visitation schedule, and the court approves it. Except in extreme circumstances, such as family violence, most judges approve a traditional every other weekend and every other holiday visitation schedule without blinking an eye.

This arrangement works well in many cases. However, during the school year, parenting time is divided about 70/30. Many families need something closer to 50/50, and several options are available.

Extended weekend visitation is one such example. The cumulative effect of small adjustments usually leads to big changes over time. Beginning weekend visitation on Thursday and ending it on Monday brings the school year parenting time division much closer to 50/50.

Other options include nesting (the child stays put and the parents swap residences) and block scheduling (two weeks with Parent A, two weeks with Parent B, lather, rinse, repeat).

Count on a Savvy Hillsborough County Attorney

The best interests of a child, the determining child visitation factor, vary in different cases. For a confidential consultation with an experienced family law attorney in Brandon, contact Carman & Finegan, P.A. We routinely handle matters throughout the Sunshine State.