Sometimes the most difficult aspect of a divorce is helping children understand that you are divorcing your spouse; not them. One way to reassure your children is by regularly spending time together. Keep in mind, however, that this time with your children depends upon your family’s custody arrangement. Even if awarded joint custody (joint decision-making responsibility), one parent will have residential custody, meaning that the children will reside primarily with him or her. The other parent is referred to as the non-custodial parent.
Generally, the non-custodial parent is entitled to reasonable visitation rights. The law defines “visitation” as face-to-face time spent between the non-custodial parent and child. In certain circumstances “visitation” might also refer to court-sanctioned electronic communication, such as instant messaging or video conferencing.
What is reasonable varies by family. The court may curb visitation rights if a hearing determines that visitation would seriously endanger the child’s physical, mental, moral or emotional health. The court may also deny a parent’s visitation rights entirely based on evidence presented at the hearing.
Ultimately, a child’s best interests outweigh a parent’s right to visit his or her child. However, the court’s initial decision regarding visitation is not set in stone. The order granting, denying or restricting visitation rights may be modified according to the best interests of the child. The court will order another hearing to hear evidence so it can make a new determination.
Many parents nowadays, however, are agreeing to co-parenting wherein the parents spend equal time with the child. This avoids many of the court proceedings with custody or visitation battles, and ultimately can be easier on your children.
Seeking Visitation as a Grandparent, Great-Grandparent, Sibling or Stepparent
Special rules apply if an individual is seeking visitation as a sibling, grandparent, or great-grandparent. Certain conditions must exist before one of these individuals can file a petition for visitation rights. First, a parent must have unreasonably denied visitation. Second, the individual seeking visitation must prove one of the following:
- The child’s other parent has passed away or has been missing for three months;
- A parent is deemed incompetent;
- A parent has been in jail for three months before the petition was filed;
- The parents are separated or there is a separate proceeding regarding custody or visitation, and at least one parent is not opposed to visitation;
- The child was born out of wedlock and the petitioning individual is related to the mother; or
- The child was born out of wedlock, paternity has been legally established, and the petitioning individual is related to the father.
Note that the visitation rights of a grandparent, great-grandparent or sibling cannot diminish the visitation rights of the parent who is not related to these individuals.
Stepparents may also seek visitation, but only if these circumstances are met:
- The child must be at least 12 years old;
- The child must have resided continuously with the parent and stepparent for at least five years;
- The parent is deceased, disabled or otherwise unable to care for the child;
- The child wishes to visit the stepparent; and
- Prior to filing the petition, the stepparent provided for the care, welfare, and control of the child.
The law concerning visitation is complex, especially if you are not the child’s parent. In order to maximize time with your child, grandchild or sibling, be sure to seek help from experienced family law counsel. Contact us today for a consultation. We can assist those in Chicago and its surrounding counties.