Baby Visitation Rights

By Beverly Bird

Updated March 30, 2020

Man feeding baby

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When parents divorce, if the court does not award primary physical custody of the child to one parent that parent will almost certainly have the right to visitation with the child. This rule is virtually absolute, except in cases of documented domestic abuse or if other circumstances make a parent unfit. If your child is still a baby, however, special considerations apply. This does not mean you cannot have visitation, but your parenting plan must accommodate the particular needs of an infant.

Baby's Needs

An infant will usually be more attached to a parent who is her regular caregiver. If this is you, you should have physical custody, either through an agreement reached with your spouse as part of your divorce or by order of the court. Your baby does not have any understanding of visitation schedules; she only knows that when she cries, one parent typically responds. If that parent is suddenly not available and someone else appears in her stead – even her other parent – this can create the beginnings of separation anxiety and other problems. Courts recognize this and most will accommodate the baby's needs rather than the parents' when they must schedule visitation time because parents cannot agree to it on their own.

Practical Considerations

Not all babies form the same degree of attachment to their primary caregiver, so the unique details of your particular situation are critical. For example, if both Mom and Dad work full time outside the home, it is possible that the baby has spent considerable time with a third party caregiver. In this case, if Mom is the custodial parent, the infant being separated from Mom for hours at a time might not be as traumatic for the infant, because the infant is already accustomed to this. Toddlers with older siblings may adapt to moving between households more readily when their brothers and sisters accompany them.

Visitation Schedules

Co-parenting a baby during and after divorce necessarily involves cooperation between spouses. If you do not come up with a parenting plan by agreement as part of your divorce process, the court will more or less force you to get along, at least for brief periods. Most states have standard visitation schedules that judges assign when parents cannot agree on a parenting plan, and these schedules can require that visitation occur only in the custodial parent's home for very young babies. For example, Ohio requires this provision for infants under two months old. Missouri limits visitation with young infants to a few hours at a time, two to three days per week. Ohio's standard visitation schedule does not accommodate overnight visitation away from the custodial parent until a child is 1 year of age.

Joint Physical Custody

Once your baby is a bit older, you should be able to set up a custody arrangement that includes overnight stays with both parents. After frequent visitation while your child is an infant, you can transition to more of a joint custody arrangement when she is old enough to divide her time more easily between your homes. Not all states automatically grant joint custody requests from parents, particularly if they cannot get along well enough to make such an arrangement work, but courts often will do so if you can prove that the custody terms are in the best interests of your child.