When a marriage is ending and there are children involved, things can be very complicated. Determining custody and visitation rights of the parents is tough enough, but when you or the court has to consider the visitation rights of friends, extended family members, or even parents convicted of a felony, the situation becomes even more complex.
When dealing with these complicated issues and the emotions of all involved, the Missouri courts will ultimately look out for the best interests of the child or children. With the assistance of an experienced Missouri divorce lawyer, any questions or concerns you have about visitation will be effectively addressed.
Custody vs. Visitation: What is the Difference?
Custody of a child can occur in multiple different ways, including the following.
- Joint physical custody and joint legal custody to both parents.
- Joint physical custody to both parents and sole legal custody to one parent.
- Joint legal custody to both parents with sole physical custody to one parent.
- Sole custody to one parent.
- Third-party custody or visitation.
Custody refers to a parent's (biological or adoptive) or a guardian's legal and physical rights to a child.
Visitation refers to a person's rights to visit a child although they do not have custody of that child. In such a case, the person may have a specific schedule as to when they can see the child, but they will not have rights to make legal choices for the child or have the child live with them for any certain period of time.
Visitation is not always a right but is more often a privilege granted to an individual by a court that allows that person to see the child. It is important to know what your privileges allow, and whether you can enforce the privileges you have been granted. With the help of an experienced Missouri family law attorney, you can rest assured you are not in it alone.
A Parent Who is a Felon
A parent of a child cannot be denied visitation without some kind of hearing. When the court considers its custody decision, it will often consider the issue of visitation at the same time. It may also occur at a later time pursuant to another motion or hearing.
Parents with certain felonies, especially those involving domestic violence, neglect, or abuse may not be awarded custody and are then left with only visitation. A Missouri court must consider domestic violence when making visitation decisions. In doing so, the judge must look at all of the facts and circumstances of the case to determine if visitation is in the best interests of the child.
If the court believes it is necessary, it can require supervised visitation. Supervised visitation is watched by a responsible adult; the supervised parent and child are never left alone together. The judge can also require the supervised parent to pay for all of the costs associated with the supervised visitation. In some case, proof of treatment or rehabilitation may convince the court to end the supervision requirement.
In Missouri, there are no guaranteed visitation rights for grandparents but in limited situations, grandparents may be granted visitation rights. The court can grant reasonable visitation rights when one of the following situations has occurred.
(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when visitation has been denied to them.
(2) One parent of the child is deceased and the surviving parent denies reasonable visitation to a parent of the deceased parent of the child.
(3) The child has resided in the grandparent's home for at least six months within the 24-month period immediately preceding the filing of the petition.
(4) A grandparent is unreasonably denied visitation with the child for a period exceeding 90 days. However, if the natural parents are legally married to each other and are living together with the child, a grandparent may not file for visitation pursuant to this subdivision.
Even under these circumstances, the court will determine if grandparent visitation is in the child's best interest.
Non-Parent Third Parties
For a person who is not a parent (biological or adoptive) or a legal guardian, they are considered a third party if they intend to request custody or visitation. To be awarded third-party custody or visitation, the court must find that the parent is unfit, unsuitable, or unable to be a custodian, or:
- the welfare of the child requires visitation from the third party,
- it is in the best interests of the child,
- the court deems the other person or persons requesting custody to be "suitable and able to provide an adequate and stable environment for the child."
Specific proof must be shown to the court that the natural parent or parents are unfit to maintain custody of the child, or that visitation of the child is necessary to ensure that fit care is being given to the child.
A common example of a non-parent third party who may have an interest in visitation is illustrated by the following example.
John and Anna have been dating for five years, and have lived together for four. Anna has a 6-year-old daughter Caroline, who John has helped take care of for the last four years. (John is not Caroline's biological father.) John and Anna separate as a result of Anna's continuing and worsening drug addiction. John loves Caroline like his own daughter and is worried that Anna's drug addiction makes her an unfit mother. He can file a motion with the court for visitation or even custody if he can prove that Anna is unfit to care for her daughter.
Consult a Missouri Divorce Attorney
Child visitation is important to the parties who want to keep in contact with a child they love and care for. Visitation law can be incredibly complex, but with the help of an experienced Missouri family law attorney like Joshua Wilson, you can be assured you are following the law while caring for your family.
Contact the Joshua Wilson Law Firm today at (816) 331-9968 for a consultation.