After a couple gets divorced, the courts usually decide custody of the child if the parents cannot find an amicable agreement. If a parent loses sole custody of a child, it can be an emotional and troublesome time for both the parents and the child.
Parents usually have visitation rights that they can exercise to be able to physically be there with their children. But there are some terms and conditions that apply for claiming visitation rights.
This article describes visitation rights in Canada and what you need to know as a parent.
What are Visitation Rights?
Visitation rights are limits or restrictions set on child custody. When a couple gets divorced, they may have shared custody, split custody, joint custody, or one parent may have sole custody of the child.
When the court awards sole custody of a child to a parent, the other non-custodial parent has the right to visit the child unless extraordinary circumstances deny visitation.
Visitation can be denied if there is evidence that the parent is an alcoholic, is addicted to drugs, or is physically or verbally abusive.
Visitation rights can be determined by agreement between the parents or by court decision. If the court finds that the parents can be cooperative, it will not issue a visitation schedule, which means parents must amicably agree on reasonable times that work for both the parents and the child.
If parents are not cooperative, the court will require the parents to create a detailed schedule that outlines the frequency of visits, the days and times of pickup and return, and also holiday and vacation schedules.
What are the Types of Visitation?
Three main types of visitation are usually seen in cases where a child is in the sole custody of a parent. They are:
1. Reasonable visitation
When a judge orders reasonable visitation, the order will not determine the terms of visitation. Instead, it is up to the parents to agree upon a suitable schedule for visits.
This visitation form allows parents to have flexibility in deciding what is reasonable, including times, dates, and frequency of visits, but this can sometimes be inconvenient.
In cases where the child is an infant, the parent may visit occasionally and rarely get overnights. However, if the children are older, visits may be longer and involve frequent overnight stays.
You should only seek a reasonable visitation order if you and the other parent can cooperate and have no other issues that may impact the agreement later on.
2. Supervised Visitation
When the court determines that it is not in the child’s best interests for the non-custodial parent to be alone with the child, then it will order supervised visitation. The court will then provide a schedule the non-custodial parent must abide by.
The visitation must occur at a court-sanctioned facility in the presence of an approved supervisor. In some cases, the court may allow the parents to choose a supervisor, like a friend or a family member, where the visits can take place at their home or another preapproved location.
Courts highly value the non-custodial parent’s right to spend time with their child. However, it will only limit this time if there is evidence that spending time with the parent may not be in the child’s best interest, such as when the parent has a history of drug abuse.
In cases like this, the court may mandate that the parent take a drug test before seeing the child. However, supervised visitation is subject to change only if the non-custodial parent meets certain conditions.
3. Unsupervised visitation
This is the most common type of visitation order. Unsupervised visitation means that the non-custodial parent is allowed to spend unsupervised time with their child, including overnight visits. The court usually creates a schedule that the parent must follow.
Unlike reasonable visitation, the court can be asked to enforce the order if the custodial parent refuses to follow the schedule or outright denies visitation.
How Do Courts Decide Visitation Rights?
If the parents cannot agree on visitation, the court will consider a few factors based on the “best interests” of the child. The factors include:
- Parents’ ability to provide for the child’s financial and emotional needs.
- The relationship between the parent and child
- The child’s wishes, if they are of an age of maturity as per the court.
- If you have multiple children, the court will want them to be together
- The court will try to maintain the status quo, which means the court will prefer not to disrupt the established lifestyle
- Who the primary caregiver is
- Time available for the child
- Special needs of the child
- Possibility of interference by another parent
What are the Visitation Rights of a Non-custodial Parent?
Nowadays, courts focus on which parent is best suited to care for a child instead of relying on gender stereotypes, which means being a father or mother doesn’t affect your visitation rights.
The rights a non-custodial parent is provided by law include:
- The right to visit a child according to the visitation order agreed upon
- The right to be free of the other parent’s control during visits
- The right to spend the entire time with the child
- The right to modify visitation orders if it is no longer feasible
- The right to seek an injunction from the court if the custodial parent plans to take the child to another province or country.
- The right to plan activities with the child per their visitation order
The court always prefers the stability of a child, and thus changing a visitation order, although the parents’ right, has to go through the courts. If both parents can agree on a new visitation schedule and terms and it is not harmful to the child, the court will adopt the recent change.
However, the court can review the case if an agreement cannot be made. Although the requirements to change visitation is easier to achieve than changing custody, it doesn’t mean the court will automatically agree to the change.
Requirements vary from place to place, but most courts require the parents to provide a request for modification that details that there has been a change in circumstance and the current order are no longer in the child’s best interests.
Although a parent has certain inalienable rights regarding their children, a divorce can impact their rights, especially if the parent loses custody of the child.
If you have been involved in a divorce and do not have sole custody of your child, you must hire an experienced divorce lawyer to help you fight for your right to visit your child.
Only an experienced lawyer can help you get the best outcome in these situations as it can be sensitive and requires nuance.