Visitation rights are limitations or restrictions on child custody. When a couple divorces, they may either have shared custody, joint custody, split custody, or one parent can have sole custody. When sole custody is granted by the court to one of the parents, the non-custodial parent maintains the right to see and visit the child, absent extraordinary circumstances—this is what is called “visitation rights.” It is a right given by the court to the non-custody parent allowing them to see their children after they lose custody in a divorce dispute.
An express prohibition on visitation must exist within the decree to deny parental visitation rights because visitation rights stem from the fact of parenthood. Even though this strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by noncustodial parents. If a party convinces the court that visitation rights would be injurious to the child's best interests, then the court possesses the authority to deny visitation rights.
This best-interest-of-the-child analysis, however, does not automatically defer to the child's stated desires, because parents inherently possess the right to attempt to repair the parent-child relationship. Thus, even if a child does not want their parent to have visitation rights, that sentiment is insufficient to deny the parent their visitation rights. Cases in which courts deny visitation rights often include noncustodial parents who had physically or emotionally abused the child in the past, and noncustodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.
Visitation rights can be modified after the divorce decree is ordered, either in a new proceeding where the party seeking the change in visitation rights presents evidence showing a change in the circumstances that affect the interests and welfare of a minor child. They can also be modified in a subsequently filed contempt proceeding by motion of either party or motion of the trial judge—if a parent refuses to obey the court's visitation or custody decree, the court can order the parent in indirect contempt of court.
A child’s grandparents may, depending on the state’s family laws, have the right to file an original action for visitation rights to a minor child in any action where the court has before it any question concerning child custody. So, in a divorce proceeding where child custody is in dispute, any of the child(ren)’s grandparents can file an original action for visitation rights to the child in that court.
Like other aspects of family law, the states control most laws in the field of child custody, so it is important to check the laws specific to your state in order to have a full understanding of visitation rights laws applicable to you.
[Last updated in September of 2021 by the Wex Definitions Team]