Laws for Visitation for an Absent Father

By Rob Jennings J.D.

Father and child

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Child custody law, like most family law, is governed by the laws of individual states. This means considerable variation can exist from state to state in terms of what a judge must consider in ruling on a child custody case. In general, however, your judge will base his decision on an analysis of what is in your child’s best interests – regardless of whether you've ever lived together in an intact home.

Custody Vs. Visitation

In family law, lawyers and litigants sometimes use the terms "custody" and "visitation" interchangeably, especially when referring to the time a noncustodial father gets to spend with the child. Despite their common usage, "custody" and "visitation" are actually different. When a judge grants you visitation with your child, you get the right to have the child in your care for a specified time period. When a judge grants you joint custody of your child with the mother, you not only get your "placement time," which is what some people refer to as their "visitation," but also the right to obtain school and medical information and to be involved in making critical decisions regarding your child's life.

How Courts Determine Child Custody

Although almost every state requires judges to decide child custody matters based upon the best interests of the child, your state's child custody statutes may spell out specific issues that the judge must consider. Critical issues often include your residential history with the child, your work schedule, your criminal record, your pattern of drug or alcohol use and the degree to which you are able to cooperate with the other side in a co-parenting arrangement. This can give you an idea of what your trial judge will be looking for when ruling on your case.

Modifying an Existing Order

While the best interests of the child always controls a custody case, you face a few procedural hurdles if you are trying to expand your visitation or placement time with your child under an existing order. To make such a change, most jurisdictions will require you to show that a substantial and material change in the circumstances affecting the child's welfare has occurred since the last order was entered. You will probably also have to show that your proposed alterations are in your child's best interests. Exactly what constitutes such changed circumstances varies from state to state.

Where to Find the Law

Since your time with your child is priceless, you'll probably want to consult with a family lawyer before making any major moves regarding your child custody situation. To learn more about the law, though, you can start with your state's code of statutes, often available online through your legislature's website. Child custody statutes are usually located in the section on domestic relations or family law. If your local library subscribes to Westlaw, Lexis Nexis or another legal search engine, you can access case law wherein appellate judges in your state have interpreted, clarified and expanded the reach of those statutes.