When your court order doesn’t provide the best visitation schedule –
The initial amicable divorce process usually will have several major issues to be resolved regarding the finances, property, and children. As the multiple issues are resolved through agreement or court ruling, the issue of the physical custody or visitation schedule may be a major dispute, an item of easy agreement, or relegated to accepting the “usual” schedule set by your local court in lieu of the additional time and expense of litigating the issue.
Perhaps the implementation of the original (or last) court ordered schedule has not lived up to expectations or the circumstances of the parents and children changed. Seldom does the visitation schedule go without need for change.
If the current court ordered schedule is not the most appropriate for your children or you are currently following a schedule by agreement that is not set out in the court order, modification of the court order is necessary to provide an enforceable, accurate schedule. Absent the schedule being set forth in a court order, there is usually nothing police or child welfare authorities can do to enforce the schedule without you having to go back before a judge to have the schedule judicially sanctioned.
Issues in visitation schedules
Of course, you would like to spend as much time with your children as possible. However, the court must balance the desires of both parents with the needs of the children. The desires of the children may also be taken into consideration depending upon their age and maturity. If the parties can agree to a schedule, the court will usually adopt the agreement of the parties. If the parties can not agree, numerous issues can come into play when the court is deciding the appropriate schedule.
The courts in your jurisdiction may have a “standard” schedule used where the parties can not agree and no compelling issues are raised to warrant a different schedule. Such schedules usually are premised upon both parents working Monday through Friday during the day, with the children in school or daycare during that time, such that the weekends and weekday evenings are in demand by both parents. The standard schedule is usually the parents alternating weekends, the children residing with one parent on weeknights, and perhaps the other parent spending time with the children for a few hours on one or two weeknights each week. This standard schedule normally is based upon an assumption that the children need a stable schedule to be prepared for school or daycare that can only be assured by having the children sleeping at the same home during the week.
When one or both parents do not work the Monday through Friday dayshift schedule, the standard schedule is usually not appropriate.The primary focus of the schedule is to provide the parents with as much time with the children as possible, not to rely upon daycare or relatives for raising the children.If one parent is not going to be employed or works from home, such that the parent can appropriately care for the children at all times, the children being with that parent during the week more may be appropriate.A parent who works a non-standard schedule, such as weekdays off instead of weekends, should seek visitation on their days off to maximize involvement with their children.“Non-standard” visitation schedules are particularly appropriate for younger children where the children’s schedule and school preparation are not an issue.If both parents work evenings, nights, or odd hours, the issues become more complicated in addressing which parent can supervise the school preparation, bedtimes, and the children getting to school in the morning.
In addition to the schedules of the parents and children, there may be an issue as to the appropriate parenting skills of the other parent or the ability of the other parent to deal with specific situations. You may find that the children are not being supervised sufficiently by the other parent – being left alone for lengthy periods, left to prepare their own meals, or allowed to engage in inappropriate video or internet activity (but not endangered or neglected to warrant child welfare intervention). There may be other adults or children residing with the other parent with whom your children have conflict or who you find are unacceptable influences. The schools which the children attend in your neighborhood may offer more or better opportunities than those they attend at the other parent’s home. Perhaps the other parent just can not deal with a rebellious child or a child that requires more time than the parent can devote for activities, homework, or other needs and interests of the child.
Pursuing a visitation schedule modification
The first step in addressing a modification of visitation is to attempt to reach an agreement between the parents as to what is best for the children that also provides involvement of both parents in the day-to-day lives of the children. Some jurisdictions may require formal mediation of the visitation issue prior to taking the issue before the judge. The parenting divorce judgment or, if applicable, joint parenting (joint custody or joint legal custody) agreement may also require a mediation attempt. Mediation can only facilitate the airing of issues and seeking agreements, as the mediator usually has no authority to force a resolution. Unfortunately, the differences of opinion (or lingering post-divorce conflict) between the parents may prevent successful settlement or mediation of the issue.
When an agreement can not be reached, the nature of the underlying issues will direct how to approach a court hearing on visitation. In some cases, the issue may boil down to the unfortunate tug of war over the children that can result from the divorce decision. Neither parent may have a compelling case for having the weekday (or majority of time) visitation. Without an agreement between the parties, most judges will not force any kind of shared weekday schedule on parents who can not cooperate. Such cases may simply require each party to plead their case with the judge and leave the issue to the judge’s discretion as to which parent may offer the slightly better situation for the children, which decision may be to leave the schedule as-is to avoid any disruption to the children.
If a child has a visitation preference and is mature and articulate enough to express it, the judge may interview the child or appoint an attorney or advocate to interview the child.The preferences of the child are usually not controlling, but the older the child and more articulate the child’s expression of their interest, the more likely the child’s preference will be taken into consideration.
If there are issues as to the parenting abilities of a parent, the home environments, or as to the impact upon the emotional or educational health of the child, an evaluation of the situation by a qualified professional may be warranted. Such evaluation may be by a court-appointed social worker, psychologist, or other appropriate professional, by a government child welfare agency, or you may be entitled to request the court allow you to retain your own expert that the other parent must cooperate with in an evaluation. Such evaluation should include a review of school and medical records, interviews with teachers and other care givers, as well as interviews with the children, parents, and other persons who interact extensively with the children (relatives, step-parents, etc.). The evaluator normally will submit his/her professional recommendations to the court for the judge’s consideration. While the recommendations may convince the parties to resolve the visitation issue by agreement, the expert’s recommendations are normally not binding upon the court and a hearing on the expert’s recommendation and other relevant evidence is still required to resolve the issue if the parties can not agree.
Holidays and Vacations
Holiday and vacation issues usually involve accommodating family traditions as to holidays, parental schedules for vacations, and child activities that conflict with visitation. If there has been a tradition as to certain holidays (Thanksgiving, Christmas Eve and Day, Independent Day, etc.), a court may continue those traditions. Otherwise, alternating years for holidays is generally ordered. The extent of the holiday list and whether the holiday is just the day or the entire holiday weekend (Memorial Day, Labor Day, etc.) will vary from jurisdiction to jurisdiction and even judge to judge. In addition to the traditional or National holidays, school holidays may also be included in the list even though the parents may not have the day off from work. If you have a flexible work schedule, including the additional school holidays is a reasonable issue to pursue.
The visitation for the summer, winter, and perhaps spring breaks from school should also be specified. The summer vacation period will depend upon how much time each parent is going to take for vacation and what summer activities the child will have that may conflict with vacation plans. Provisions for a deadline for selecting vacation periods and for alternating years that each parent will have priority in selecting weeks should be included in the court order, in addition to how many weeks of vacation each parent has (with a definition of what is a vacation week in terms of the regular alternating weekends and how many weeks can be taken at a time to avoid scheduling issues). The winter break needs to also reflect parent availability but may also reflect family gatherings or other traditions. Your children’s school may have a spring break of a long weekend or an entire week to be split or alternated.
Getting the modification
State laws and rules may limit when a court modification of visitation may be sought and the prerequisites required, such as mediation. However, when the current schedule is not set out in the court order or the court ordered schedule is not appropriate, consultation with a qualified domestic relations litigation attorney can identify for you what changes are warranted and what will be involved in your jurisdiction to pursue obtaining the appropriate visitation schedule.