There are two concerns people have when they are going through a divorce: money and their children. The vast majority of parents want to remain a part of their children’s lives in some fashion, and so discussions about visitation and parenting time have paramount importance.
It’s important for parents to understand some of the key elements of visitation and parenting time decisions, so that they can mentally prepare for what is to come, but also so that they can make realistic requests in court with the assistance of their attorneys.
Here is a short primer on the basic concepts of custody and visitation. If you have any questions, make sure to discuss them with your attorney so that you have a firm and clear understanding of what is to come in your case.
When we speak of custody in general, it can be sole custody (where only one parent is awarded custody), or joint (where both parents share). While most judges in Georgia will usually approve an arrangement that both parties have agreed upon, sometimes the parents just cannot agree. In that case, the judge will rule based on the best interests of the children.
There are also two specific kinds of custody that the court will award: physical and legal. Physical custody refers to the location your children will live at. Legal custody refers to the ability to make significant decisions for the child, usually in the areas of education, health/medical, religious, discipline, and extracurricular activities.
So, in essence, there are six types of custody that can be awarded:
If a parent is awarded primary physical custody, the children will be living with that parent the majority of the time. The non-custodial parent is usually awarded reasonable parenting time.
Keep in mind that physical and legal custody are two different things. So, even if you are not awarded primary or joint physical custody, you may be awarded joint legal custody with decision making authority in some areas. It is common for a parent to be designated the primary physical custodian and still share joint legal custody with their ex.
One other thing to remember about physical custody decisions is that it even if you are awarded joint physical custody, it is possible to not actually split physical custody 50/50. With school and extracurricular schedules, it can become difficult to create a situation where the time is evenly split. So, even in this case, one parent will probably see the children more than the other.
With custody worked out, it’s time to create a visitation schedule for the secondary physical custodian. As with any court decision concerning children, the court considers what is in the child’s best interests before considering any other factor.
Some states have begun to use the term “parenting time” in place of “visitation”. They are the same, but “parenting time” reminds all parties that when the children are with you, it’s an important time and opportunity for you to engage with the children and take an interest in their activities, versus just putting them in front of a TV.
There are cases, especially if there is a history of violence or abuse, where a judge can dictate that there is to be no visitation for the non-custodial parent. If the judge feels that visitation would harm the child in some way (either physically or emotionally), they can rule that the non-custodial parent is to have no contact.
Visitation can occur in two ways:
In a standard visitation schedule, both parents decide what days each parent will have the children. Visitation schedules should spell out any kind of special days, such as birthdays for both parents and children, holidays (including school breaks), Mother’s Day, Father’s Day, and important days for school, such as testing calendars and sports/concert schedules.
There are a variety of different visitation schedules that can be chosen. Perhaps the non-custodial parent gets certain weekends during the school year and a more lengthy period during the summer and certain holidays. There are also schedules that try to approximate a 50/50 arrangement by handing off the kids every other week or even every few days.
Remember that the primary consideration for the court is what is in the child’s best interests. Be prepared for pushback from the judge if you decide to complain about visitation getting in the way of your schedule, or the length of travel involved, or another item that is not directly centered around the children.
The parenting plan schedule is an official Order of the court, and if it’s in writing, you need to understand that you can be held in contempt for not following it to the letter. If something goes wrong with your visitation schedule, your first call should be to the other parent to find out what is going on. A minor issue can be dealt with between the two of you, such as one parent needs to be a little late for a pickup. However, if there is a major change, such as a date change or a holiday cancellation, you need to contact your attorney. Changes in a visitation schedule need to be approved by the court. Play it safe -- talk to your attorney.
As children get older, their needs change and visitation schedules need to reflect those changes. An elementary age child is probably going to be involved heavily with both parents, as that is a key age for bonding and spending time with each. Their schedule is less likely to be encumbered with many extracurriculars, so it should be easier to find a schedule that is suitable for all parties.
As a child gets older, especially as they enter high school, a regular visitation schedule may no longer be feasible given academic, employment, and extracurricular involvement. The visitation schedule may need to be changed to accommodate an older child. Keep in mind that the court is primarily concerned with what is in the best interests of the child. The expectation will be, within reason, that allowances are made for a child to participate in various activities with their peer group.
In many families, grandparents play an important role. They serve as caregivers and mentors to children, and help out in numerous ways. In Georgia, the court recognizes the importance of grandparents for many children, and there is an avenue to get visitation rights in case of a contentious divorce.
If you are a grandparent, and are being left out of the custody proceedings but still wish to see your grandchildren, it is possible for you to file a petition or motion with the court and request visitation rights.
You can request to join the ongoing court case as an interested party or you can file your own petition. There are limits to the latter: you can only file a petition once every two years, and you can’t ask for visitation if the child lives with both parents (assuming they are not separated).
The court wants to see every child have a relationship with both parents. Research continually shows that this is important to a child’s healthy development and overall well-being.
Unfortunately, there are times where the well-being of the child requires that visits be monitored. Sometimes, there are past safety issues. Perhaps the child has not seen this parent in a long period of time, and needs an adjustment period so that they can acclimate better in a controlled environment.
The court will specify the time and length of visits. It will probably assign a place and a supervisor as well. The supervisor is a professional who is only there to monitor the visit and take notes. They will not intervene in the visit unless the child is in danger. The reports the supervisor files are only meant to document the interaction and can serve as evidence later on that you are able to handle less supervision.
Summer can be a busy time for children. There’s summer camp, academic enrichment opportunities, as well as the family vacation. With two parents wanting to create summer memories, a standard visitation schedule may not be the best option.
A great summer vacation plan starts months in advance and requires that both parents are flexible and on the same page when it comes to putting the needs of the children first. Break out a calendar and start entering in key dates, such as camp dates or day programs. Then, try and work out a schedule that allows for extended visitation time with each parent. This way, the parent has enough time to schedule a trip or another adventure.
Remember that any changes to your existing visitation schedule must be approved by the court. Also, as you plan for summer, keep in mind that as children get older, summer is a prime time for them to hang out with their friends. Giving them some down time and allowing them to just be kids is a great idea.
It’s totally natural that, as a parent going through a divorce, you are worried about maintaining a great relationship with your children. Just because you are ending a relationship with your spouse doesn’t mean the relationship you have fostered with your children has to end as well.
While it would be wonderful to think that most couples can work out the details of a visitation agreement on their own, that just isn’t reality for most. There are still a lot of hurt feelings and resentments that play out -- sometimes, parents see visitation as a way of settling scores.
An experienced, caring attorney can take the emotion out of a visitation schedule and help you to not only advocate for your children, but yourself as well. Having an attorney involved can also mean getting assistance when the schedule needs to change or when an emergency arises and you may be in violation of a court order.
If you are in Henry, Clayton, or Fayette counties, or live in the Atlanta metro area, Family Matters Law Group can help you get the visitation schedule your family deserves. We have been helping clients for years. If you think we can be of service as you navigate the visitation waters, let us know. Contact us today for an initial consultation. We’re ready to hear your story and fight hard for you!