Family Law

Visitation Awards and a Child's Preference

Courts understand that in most cases relationships with both parents are in the best interests of the child. The best interests of the child is how the court measures his or her the well-being. A court is not required to consider the preference of the child when awarding visitation, as long as the court finds that any visitation decision is in the best interest of the child.

The weight given to the preference of the child for visitation varies with the child's age. If the child is of a certain age where a court believes that he or she is able to express a preference, a court may consider the child's preference. Simply put, courts will not allow the child to decide the terms of visitation. This is because it is the court's function to safeguard the child's best interests and to give the child the final say in awarding visitation could make the child a bargaining chip in the relationship between the parents.

Factors in Considering the Child's Preference

There are key factors that courts use when considering the preference of the child:

  • Maturity level and age of the child
  • The reasons for the child's preference
  • The fitness of the parent seeking visitation
  • Hostility of the child towards the other parent

Changes in visitation can have the effect of working against the child's best interest because the stability of the child's upbringing may be interrupted. This must be weighed against any harm to the child by continued visitation with an unfit parent, for example.

In addition to the age of the child, courts also consider whether the preference relates to factors that are in the best interests of the child. A judge may ask about the child's life in general, including school, friends, life with the custodial parent and the child's feelings toward the other parent. Keep in mind though, the child's preference is only some evidence for the court, and the court may even disregard the child's preference.

Factors in Giving Less Weight to the Child's Preference

There are also situations when courts will give less weight to a child's preference. When a parent has failed to continuously visit the child, courts may be reluctant to award visitation to that parent. Although this is true, more than just the failure of a parent to maintain a relationship with the child is needed for a court to deny visitation without other reasons.

Courts prefer to avoid shared custody arrangements resulting from modifications in visitation. In other words, courts don't want to award so much visitation to one parent that the child's time is divided evenly between the parents. This could amount to a modification of custody instead of a modification of visitation.

Courts are not required to consider the child's testimony in awarding visitation as long as the award is made in the best interest of the child. Visitation may also be awarded over the objection of the child. A court may even reduce or restrict visitation if that modification of visitation is in the best interest of the child.

Courts sometimes make visitation awards after giving less weight to the child's preference. Reasons include:

  • A judge may be reluctant to award excessive visitation amounting to shared custody
  • A parent may have failed to maintain an ongoing relationship with the child
  • Court crafted visitation may allow siblings to spend quality time together in cases where custody of the siblings has been split between the parents
  • Frequent modifications reduce the stability of the child's life

Finding Solutions to Visitation Issues

The entire process can be stressful for children and can drain the family of much needed funds for the child's support. Parents should be ready to discuss fair solutions to visitation disputes and be sure not to disregard what's in the best interest of the child.

Questions for Your Attorney

  • Is the child old enough for the court to give weight to his or her preference?
  • What is required to prove that the best interest of the child is met by giving weight to his or her preference?
  • How can I prove that I am a fit parent for an award of visitation?
  • What about alternating visitation on certain holidays?
  • If I have not maintained an ongoing relationship with the child, what factors will the court weigh in awarding or denying my application for visitation?
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