James R. Balmforth: Child Visitation Rights

When a couple going through a divorce has children, a family law court may need to get involved in decisions regarding child custody and child visitation rights.

In a divorce, these two issues are typically determined at the same time. In some divorce proceedings, it is determined that it is in the child’s best interest for one parent to have sole custody. In this case, the court can decide that the parent without custody of the child has a right to visitation. In some situations, the court will decide that the noncustodial parent does not have any right to visit the child.

Filing for visitation rights

A child’s parents, grandparents and siblings may file for visitation rights. Filing for visitation is a first step toward gaining rights to spend time with a child. However, just because a person files for visitation does not mean the court will grant them visitation rights. Additionally, in some cases, family members of the child may wish to enter into mediation to determine an agreeable visitation schedule for all parties.

Modifying visitation rights

Either of the child’s parents may make a request for modification of a visitation order. Modifications are commonly requested because a parent’s schedule has changed or because a parent has relocated. More serious changes to visitation rights may occur because of a parent’s failure to adhere to their court-ordered visitation schedule. Finally, a visitation order may change because a child would like to increase or decrease the amount of time he or she spends with one parent.

A Hard-Won Case Defending a Father’s Rights

In a unique and groundbreaking decision, the court has transferred custody of a ten-year-old girl from the custodial parent (the mother) to the child’s father. The court has also prohibited the mother from contacting the child.

For more than one year, the court limited the father’s visitation to supervised therapeutic visitation only. The mother still was not happy and continued to obstruct the supervised visitation. After a lengthy hearing with testimony from an expert forensic psychologist, two treating therapists, the parties, and their relatives the court stated that the father’s allegations that the mother was interfering with reunification was supported, and justified an immediate change in custody. In fact, the court stated that the mother’s behavior was so inconsistent with the best interests of the child that it raised the probability that the mother was unfit. There was testimony that the child’s symptoms (and acting out) were a direct result of the mother’s influence. In this case, the mother caused the child to act in a mentally ill fashion and to display a deep hatred and hostility toward her father. Through expert testimony, I was able to show that the child acting out and directing aggression toward her father was actually an effort to “please” her mother.

The court-appointed law guardian (the attorney for the child) argued strenuously against the transfer of custody, according to his client’s wishes.

The treating psychologist and the law guardian testified that it went against the child’s best interests to be transferred to the father. Whenever a mother’s attorney presents an expert, the case becomes an uphill battle. Furthermore, the judge relayed in his decision that when the child was able to speak to the judge in private, she vehemently refused to have anything to do with her father.

Nevertheless, we won this one in dramatic fashion. It was through expert testimony, questioning, and cross-examination that the judge was swayed to make an extreme decision: immediate transfer of custody from a mother to a father whom the child has not visited without supervision in over a year.

It is against all odds that this dramatic change of custody has occurred. Within twenty-four hours, it was brought to the Appellate Division but custody remains, as it should, with the father pending the outcome of this matter.

Free Consultation with Child Visitation Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.