Parenting time, also known as visitation, is the time that the non-custodial parent has been awarded to spend with their child.
In making a child custody order between the parents in California, the court must also grant the noncustodial parent reasonable parenting time unless it is shown that visitation would be detrimental to the best interest of the child.
Because of the importance placed on “frequent and continuing contact” with both parents, an order completely withholding a parent’s visitation privileges may issue only upon a finding that any form of visitation with the parent would be “detrimental” to the child’s best interest. If the custody order does not provide for parent visitation rights but does not expressly withhold such rights, the noncustodial parent has an implicit right to “reasonable visitation.”
Trial courts generally have broad discretion in defining a parent’s “reasonable visitation” rights (parenting time) and establishing a visitation schedule. Subject to a few statutory limitations (below), the sole guideline is the child’s best interest.
Factors to Consider for Parenting Time
In all cases, child visitation orders must accommodate the paramount policy of assuring the child’s health, safety and welfare and, to the extent consistent therewith, the policy preference for “frequent and continuing contact with both parents”, except where such contact would not be in the child’s best interest.
Beyond this general framework, courts consider such practical matters as the child’s age, maturity and special needs, the parent’s physical proximity to the child’s primary residence and, where appropriate, the child’s own preference.
Improper Consideration for Parenting Time
Parenting time cannot be tied to the payment of child support. A parent’s parenting time must be adjudicated independently of other issues before the court. Notably, a visitation order may not be tied to or conditioned upon the payment of child support which has no bearing on whether parental contact would be detrimental to the child.
A parent’s absence from family home or relocation. One parent’s absence or relocation from the family residence cannot be considered in determining parenting time (or custody) provided that it lasted only a short time and, during that time, the parent demonstrated an interest in maintaining custody or visitation, or maintained or made reasonable efforts to maintain regular contact with the child and demonstrated no intent to abandon the child; or the absence or relocation resulted from actual or threatened domestic or family violence by the other party.
Lifestyle, sexual preference, religious beliefs. Parenting times cannot be restricted solely on the basis of a parent’s “unconventional lifestyle,” the parties’ “opposing moral positions” or the “outright condemnation of one parent’s beliefs by the other parent’s religion” unless there is evidence these factors are detrimental to the child.
Automatic Temporary Restraining Orders (ATROs) on Commencement of Marital Action
Although parenting time is determined when a court established child custody orders. Many parents do not understand, that even before a court renders a decision on child custody, during a divorce proceeding, one parent cannot take a vacation with their child without the other parent’s consent or a court order.
On the commencement of every marital action, certain automatic temporary restraining orders (ATROs) go into effect. The ATROs are effective against the petitioner (the parent filing for divorce) when the petition is filed and a summons is issued. The ATROs are effective against the respondent (the parent who receives the divorce petition and summons) when he or she is personally served with the petition and summons. The ATROs remain in effect against both parents until a final judgment is entered in the case or the petition is dismissed. The ATROs are set forth on the back of the summons.
Once in effect, the ATROs restrain both parents from removing their minor children from the State of California or applying for a new or replacement passport for such a minor child without the other parent’s prior written consent, or a court order.
In short, during divorce children vacations will require the parent who is taking the children on vacation to obtain the written consent of the other parent.
Parenting Time or Visitation
A California court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. In the discretion of the court,
reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.
Parenting Time and Domestic Violence
If a protective order has been directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent shall be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation.
If visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a criminal protective order has been issued the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate
criminal protective order.
If the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court’s order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location.
Parenting Time and Stepparents
Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor
If a protective order has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied.
Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
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