There has been a discussion concerning what is in the "BEST INTEREST" of a child when it comes to parenting time (visitation). One side argues that the "Stability" of the child is the most important factor in awarding custody of a child. It was argued that children needed a stable home, with a single "home base" in which the primary caregiver provides for the daily needs of the child. Frequent changes in schedule were to be avoided. The presumption being that children did not do well when asked to shuttle between households.
I have found it a contradiction that the proponents of the "stability" theory do not consider daycare, or the supervision of a third party stability, but when the child is with the non residential parent it comes under the definition of "unstable". This is called a selective application of stability
On the other hand, proponents of joint legal and joint physical custody have long maintained that frequent associations is needed between children and both parents for healthy development. Proponents of shared physical custody cry that limiting one parent to every other weekend effectively cuts off the parent from any meaningful contact. That this pattern of involvement essentially created and parental deprivation effect in the child and frustrated any possible normalization of attachment between parent and child. Additionally, they point out that old presumptions about custody arrangements failed to address the needs of fathers to be fully involved in their child's development.
Nevada Supreme Court took the issues head on (Mosley). In a split decision, 3-2, the Court found that the benefits of joint physical custody outweighed the arguments that frequent switching between households was detrimental to the child. In fact, the high Court found that a defacto deprivation occurs when a parent is limited to every other weekend especially when the child has experienced a relative normal relationship with that parent.
The Court looked at the implicit rewards received by decisions that favor a parent that seeks to avoid cooperating with the other parent vs. the rewards of maintaining a normal relationship between child and parents after divorce. The Court indicated that to award primary physical custody to a parent predisposed to limit contact between child and parent, sends a message that rewards non-cooperation and puts a hidden incentive for parents to file actions aimed at limiting child access.
Finally, the Court reiterated the need of children for love, care and companionship of both their parents. The decision sends a clear signal of the value of both parents, but probably has more persuasive value for men seeking to be fully vested in their children's development.
Any policy, like the one below, which designates less than shared parenting, will have the effect of promoting limited contact and creating incentives for non-cooperation. Also, these policies are never submitted to the public for approval or are put under the microscope for gender fairness. Until a full accounting of these oversights are addressed and corrected, children will have to suffer for the courts mistakes.
The following is an actual Circuit Court policy on visitation. Policies may vary depending upon jurisdiction. Contact your local Circuit Court for local visitation policies, if any.
Benton County (Oregon) Circuit Court Policies Regarding VisitationParents are strongly encouraged to agree on the visitation schedule and conditions of visitation for their child (unless otherwise stated "child" means all minor children of the parents). If parents cannot themselves agree, they should seek mediation to help them reach an agreement. Only if the parents cannot reach an agreement should they seek a Court decision.
So many issues can arise in visitation that it is very difficult, if not impossible, for the Court to set a schedule that will cover every possible thing that can happen. Therefore, if the parents are not able to communicate and work together to reach a visitation schedule, they will likely have many continuing problems about visitation.
The child loves each parent, and it is very difficult for the child when the parents disagree about visitation and other parenting issues. The child wants the parents to agree on visitation and wants the parents to be mutually supporting parents. At the very minimum, parents must at least give the child the impression that the parents are able to get along.
If the parties cannot agree on visitation, the Court will set a specific visitation schedule and will set specific conditions of visitation. If so, the Court will require the parties to STRICTLY COMPLY with these orders. This is the only option when parents cannot agree on these issues. If a parent then refuses to follow or violates the Court Visitation Order, that party can be held in Contempt of Court.
The punishment for Contempt of Court can include up to six (6) months incarceration in the local corrections facility, a fine, and/or other sanctions.
If the parents cannot agree on visitation and the Court enters a Visitation Order, ONE PARTY CANNOT CHANGE THE ORDER ON HIS OR HER OWN. The parties can jointly agree to changes, but just because one party feels that the visitation schedule is not working satisfactorily is not grounds for that party on his or her own to change the visitation schedule. The parties must follow the
Court's order until they either mutually agree in writing to change the schedule; reach a mediated agreement to change it; or have the Court change it.
Often the custodial parent disagrees with the non- custodial parent's lifestyle, and/or parenting ability, and only wants that non-custodial parent to have a limited role in the child's life. This attitude, however, often ignores the fact that the child loves that other parent. A child needs to spend time with both parents.
On the other hand, an even greater problem can occur when the non-custodial parent does not maintain regular, ongoing contact with the child. This is very damaging to the child. When the Court orders a visitation schedule, that Order requires visitation to take place. The Court expects the non-custodial parent to exercise all the visitation provided for by the Court.
When parents become divorced they, in effect, have to develop a new relationship so they can become mutually supporting parents. This does not require that they be friends or that they have any communication about anything other than the child. It does, however, require that they work out some way to communicate about things affecting the child. The communication needs to be as respectful and as unemotional as possible. This need for communication is the reason that the Court's Visitation Order requires parents, at the very minimum, to communicate about the child by letter.
Even after the Court enters a Visitation Order, divorced parents will likely have some disagreements over visitation and conditions of visitation. When this occurs, the parents must be able to discuss the matters in some reasonable manner and compromise when necessary.
If the parents cannot work out the problem, they need to enlist the aid of a neutral third party, like a mediator, who can help them resolve the problem. Going to Court for a decision should be the absolute, last alternative.
The child loves both parents and does not want to be disloyal to either parent. When one parent talks negatively about the other parent, or the other parent's spouse or family, this is emotionally damaging to the child. When one parent tries to use the child as a source of information about the other parent, this is emotionally damaging to the child.
True joint custody means that the parents have shared authority to make all major decisions concerning the child. Parties who agree on joint custody could, for example, decide that the child will live with one parent for more time than wit& the other parent. However, if Hey did so, both parents would still have to agree on significant decisions affecting &e child.
IF PARENTS CANNOT AGREE ON JOINT CUSTODY AND HOW JOINT CUSTODY ARRANGEMENTS WILL WORK, THE COURT WILL NOT ORDER JOINT CUSTODY:The child must continue to use the child's last name as stated in the Decree of Dissolution. Neither the parent nor the child has the right to change the child's last name without either mutual written agreement of the parents or a Court order.
When there is a history where the non-custodial parent does not show up for a scheduled weekend visitation, (for example: one no show per month for 3 months) the custodial parent may write the non- custodial parent indicating that unless the non- custodial parent gives at least five (5) days advance notice that he/she cannot exercise the next regularly scheduled weekend visitation, that the custodial parent will cancel the next following regularly scheduled visitation.
Canceling the next regularly scheduled visitation should not be done lightly and should not be done by the custodial parent where, for example, there is no regular history of missed visitations, or where the missed visitation was due to an emergency situation such as health or emergency weather conditions.
Visitation is not dependent on payment of child support, or on whether or not the other parent does or does not do other things apt directly related to visitation.
The parents are encouraged by the Court to take advantage of education classes, books and articles which discuss dissolution of marriage issues pertaining to parents and children. Some of these classes, books, and articles, are designed to alert parents going through a dissolution to some of the problems faced by their child. Others are designed to help parents create a better climate for themselves and their child during and after the dissolution. Some are specifically designed for a child to read or to participate in.
There are a number of these classes, books and articles available in the Benton County area. They are described in a list available from the Mediators, or the Court's Domestic Relations Clerk (Room 106, Benton County Courthouse).
The custodial parent makes the decisions about what the child does while with the custodial parent, and the non-custodial parent makes the decisions about what the child does while with the non-custodial parent. Therefore, neither parent should schedule activities for the child that occur during the other parent's time with the child without first consulting and getting that other parent's consent.
Oftentimes one parent objects to things that the child does while with the other parent. Fortunately, or unfortunately, as the case might be. that other parent has the right to make those decisions while the child is with that other parent; provided. of course, that the activity does not endanger the immediate health or safety of the child. Ideally, however, parents will talk about their concerns on these issues and resolve them. The key is to try to do the following: To understand the other parent's concerns; to respect the other parent; and not to do anything to underhung the authority and respect (in the child's eyes) of the other parent.
One frequent issue occurs when one parent smokes or drinks alcohol in front of the child and the other parent objects. If the parents cannot agree on this issue, neither parent should smoke in the presence of the child (or in any manner so the child is breathing the smoke) and neither parent should drink alcohol while they have custody of the child to the point that parent is affected by the alcohol.
The following are suggested visitation guidelines to be considered when it is necessary to specially revise this Court's standard visitation schedule for a child of the following age.
INFANT TO AGE 1. One or two days per week at the non-custodial parent's home; also one additional afternoon or evening per week. Overnight visitation away from the custodial parent's home, provided the non-custodial parent has been actively involved in the caretaking role.
AGE 1 to 2. Four weekend days per month, plus 1/2 day per week (4 to 6 hours) away from the custodial parent's home. Overnight visitation, provided the non-custodial parent taking the child has been actively involved in the caretaking role.
AGE 2 to 5. During summer visitation, the child should have reasonable access to the other parent.
AGE 5 to 14. The visitation schedule should be flexible enough to insure the child's participation in ongoing or special activities.
AGE 14 to 18. As a child grows older, they need to be able to have some input into the visitation schedule. If this creates disagreements or other problems, there are solutions. A mediator can help. Also, there is a non-profit parent/child mediation program in Benton County which can help to resolve such makers. (Parent/Child Mediation Program, Community Mediation Services, 551 NW Monroe, Corvallis, OR 97330, (541) 757-8677) Often the teenager needs to be involved in the discussions. At this age the quality of time is generally more important than the quantity. Two to ten weeks of summer is suggested, with consideration given to the child's employment, organized athletics and outside activities.
When the custodial parent moves out of the Benton County ares, it makes it more difficult for the noncustodial parent to exercise visitation rights. Therefore, the parties will usually need to renegotiate visitation.
A child younger than 5 should not fly unaccompanied for visitation. A child older than 5 may fly alone, provided appropriate travel arrangements have been made.
Whenever one parent moves a long distance away, the Court considers a number of factors in setting visitation and responsibility for transportation costs for visitation. Some of these factors are as follows:
The age of the child; the reason for the parent's long distance move; where other relatives live; and the income of the respective parents.
Benton County Court's Long Distance and Out-of State Visitation Policy and Schedule is attached as Appendix A.
[Top]The ______ Mother ______ Father (hereinafter called the non-custodial parent) shall have the right to visit with the minor child of the parents, according to this schedule, on alternating weekends, alternating Wednesdays, Winter school vacation, Summer school vacation, and various holidays and special days.
The ______ Mother ______ Father (hereinafter called the custodial parent) shall have the child at all other times.
Unless stated otherwise, "child" means all minor children of the parents.
The Court may order visitation different from what is stated below. This may happen if there is a very young child involved, or for various other reasons. The changes the Court makes may be based on the Court's Visitation Policy currently in effect. A copy of such policy can be obtained from your attorney or from the Court clerk.
Alternating Weekends. The first weekend for visitation will be designated as the weekend beginning ________________ , 199_, and weekends shall alternate from that date.
For purposes of this rule, a weekend is defined as starting at 7:00 p.m. Friday and ending at 7:00 p.m. Sunday.
(However, the parents or the Court may provide, in writing, that the visitation will end at 8:15 a.m. on the following Monday on school days.)
Alternating Wednesdays. There will also be visitation on alternating Wednesdays starting on ,_____________ 199_ (fill in date of first Wednesday), starting at 10:00 a.m. and ending at 7 30 p.m. if the child is not in school, and starting at 5:00 p.m. and ending at 8:30 p.m. if the child is in school.
Weekends/Wednesdays that conflict with Holidays/Vacations. When a specified holiday or vacation period (see below) coincides or conflicts with any of the alternating weekend days, or the alternating Wednesdays, as shown above, the holiday or vacation shall supersede such weekend day or Wednesday. For example, if parent #1 's weekend coincides with parent #2's Spring Vacation or Labor Day weekend, parent #I will lose that "weekend" and parent #2 will have the child three weekends in a row. Similarly, if parent #2's weekend coincides or conflicts with parent #1's. Thanksgiving or Memorial Day weekend, then parent #2 will lose that "weekend" and parent #1 will have the child three weekends in a row.
Winter School Vacation. Visitation during Winter school vacation (measured from 10:00 a.m. on the day after school adjourns through 7:00 p.m. on the day before school resumes, even if the child is not of school age), will be for the _____ first half ____second half (check one) of the vacation period in odd-numbered years, and for the opposite half of the vacation period in even-numbered years. The exchange shall occur at 10:00 a.m. on the day of the midway point, even if that day is December 25th (Christmas day).
If there are an even number of days in the vacation period, the midway point is considered 10:00 a.m. of the first day of the second half.
Summer School Vacation. Visitation during Summer school vacation will be for a period of six (6) consecutive weeks during Summer School Vacation (which can begin anytime starting 10:00 a.m. on the day after school adjourns, and must end no later than 7:00 p.m. on the second Sunday before Labor Day, even if the child is not of school age).
However, if any child is age 6 or younger, the six week period for that child shall be divided into two (2) three-week blocks of time - one in July and one in August. In either case, the custodial parent shall have the child for the rest of the summer except for the weekend rules stated below.
Written Notice: The non-custodial parent will notify the custodial parent in writing before April 15 of each year, which continuous days of Summer visitation the non-custodial parent will exercise each summer with the child. After that, changes in the Summer visitation schedule win not be allowed except by mutual consent.
Weekends during the Summer: The noncustodial parent will also have the child for the "alternating weekends" (see paragraph #1 above) during the other parent's part of the summer with the child. However, the custodial parent shall have the right to eliminate (by written notice before May 1, of each year) one of these alternating weekends during his/her summer time with the child. This will result in the loss of that alternating weekend to the non-custodial parent and there will be no make-up for that loss.
Also, if the non-custodial parent has any child over the age of 6 years for more than 19 consecutive days during the summer, the custodial parent shall have the right to a weekend visitation with the child on the third weekend after the start of that extended visitation period. This will result in the loss of that weekend to the non-custodial parent and there will be no make up for that loss.
Special Holidays. The child will spend the following special holidays (even if the child is not of school age) with the non-custodial parent in even-numbered years:
A child's birthday from 10:00 a.m. to 7:00 p.m.(all children go);
Thanksgiving Holiday from 7:00 p.m. on that last day of school before the holiday, to 7:00 p.m. on the Sunday before school resumes;
Memorial Day Weekend from 7:00 p.m. on the Friday before Memorial Day to 7:00 p.m. on Memorial Day (a Monday); and
Labor Day Weekend, from 7:00 p.m. on the Friday before Labor Day to 7:00 p.m. on Labor Day (a Monday).
The child will spend the following special holidays (even if the child is not of school age) with the noncustodial parent in odd-numbered years:
School Spring Vacation from 10:00 a.m. on the day after school adjourns to 7:00 p.m. On the day before school resumes; and
Fourth of July. If this holiday falls on a Saturday, Sunday, or Monday, visitation starts at 7:00 p.m. on the Friday before the Fourth, and ends at 10:00 p.m. on the Fourth. If this holiday falls on any other day, visitation starts at 10:00 a.m. of the Fourth and ends at 10:00 p.m. of the Fourth.
Parent's Special Days. Mother shall have visitation with the child on her birthday and on Mother's Day each year, and Father shall have visitation with the child on the father's birthday and on Father's Day each year, all from 10:00 a.m. to 7:00 p.m.
Transporting the Child. All visitation periods shall be exercised in a prompt manner so that both parents can make their plans accordingly. Parents will share transportation responsibilities.
When the child is leaving a parent, it is that parent's duty to deliver the child to the front steps of the other parent's residence, no earlier than 15 minutes before and not later than 15 minutes after the times set out above. In other words, when the child is going from parent A to parent B. parent A has the duty to deliver, and parent B then has the duty to deliver when the child goes back to parent A. Before delivery, the child is to be fed and made ready for visitation, with sufficient and proper clothing packed for the visitation period.
The child will not be permitted to determine whether or not he/she wishes to be with a parent. If the child is ill and unable to visit, a makeup visitation will be allowed on the next succeeding weekend.
However, if a parent fails to accept delivery of the child, for reasons of health or for any other reason, there will be no makeup.
Annual calendar of visitation schedule. Attached to this schedule is a sample calendar. By August I of each year the non-custodial parent must fill out the calendar by circling all his/her days of visitation for the upcoming twelve (12) months, from September I though August 31 of the following year, and mail a copy to the custodial parent.
The custodial parent shall have until August 15th to make any written corrections. Any disputes must be resolved by August 30th or be submitted to mandatory mediation. This should eliminate any last minute surprises or disagreements. Additional copies of this calendar can be found at the Benton County Circuit Court Clerk's office.
Conflicting Plans. Personal plans of either parent or of the child, school activities, church activities and other considerations will not be reasons for failing to follow the visitation schedule.
Medical Problems. Only substantial medical reasons will be considered sufficient to postpone visitation. Each parent will provide addresses and contact telephone numbers to the other parent, and will immediately notify the other of any emergency circumstances or substantial changes in the health of the child.
Letters and Phone Calls. Each parent has the unlimited right to correspond with, and to telephone, their child. However, unless otherwise agreed, telephone calls to or from a child under 12 years of age who is with the other parent shall be limited to not more than 3 per week or one per weekend and each call shall be not longer than 10 minutes long. Child over the age of 12 shall have the right to initiate calls to the other parent during reasonable hours without interference or monitoring by the other parent or anyone else in any way. Long distance calls from the child are to be made collect.
No Derogatory Comments. Each parent is forbidden, under any circumstances, from making derogatory comments about the other parent, or his/her spouse or family, or in any way diminishing the love, respect and affection the child has for the other parent. Each parent must assure that no one in their household is making such derogatory comments in the presence of the child.
School Activities. In addition to the times they spend with the child as specified above, unless specifically ordered by the Court, each parent has the right to visit the child at school and attend the child's school activities (whether or not the other parent is present also), and have full access to school teachers and administrators for complete information about the child. However, the non-custodial parent does not have the right to enroll the child in another school.
Changes to Visitation. No modification or agreement that changes these specific visitation conditions will be allowed or recognized, unless h is in the form of a Court order, or unless the parents or their attorneys agree in writing to temporary changes.
Intent. It is the intent of this document to provide a schedule to parents who have not been able to agree or be more flexible on visitation. This rule is not intended to create an absolute maximum amount of time a parent can be with the child. Parents are encouraged to be flexible and to consider their child's best interests in arranging additional visitation time.
The custodial parent will have the child during all times not specifically awarded to the non-custodial parent, including the weekends, holidays and vacations not specifically awarded to the non custodial parent. Whenever one parent's turn for a vacation or holiday arises (these are always alternated between the parents except Mother's and Father's Days, and the parent's birthday), the holiday or vacation shall supersede any weekend or Wednesday time the other parent might otherwise have, and there will not be a make-up nor will the weekend schedule be changed.
In other words, there are some weekends or Wednesdays in a year which might be lost due to conflicting vacation or holidays.
If the parents are not otherwise communicating about the child, the custodial parent must send the other parent a respectful and objective letter at least once every 60 days discussing the following: The child's school, health and activities and any concerns that parent has about things that are happening during visitation. The other parent must respond to that letter by writing a respectful and objective letter to that parent within 30 days describing the child's activities during visitation, responding to the other parents visitation concerns and expressing any concerns about the child that the non-custodial parent may have.
COURT POLICIES:
The Benton County Circuit Court's policies concerning minimum visitation where the non- custodial parent resides either out-of-state or more than 120 miles away from Benton County are as follows:
Parents are encouraged to try to reach their own agreements on visitation. If they are unable to do so without assistance, they should seek the assistance of a mediator.
The Court will use the general guidelines in Part II to set visitation. The specific amount of visitation will, of course, depend on the age of the child and the parties' ability to pay for transportation costs. There should be sufficient visitation to allow a meaningful relationship between the non-custodial parent and the child. It is especially important for the parent in custody to allow the non-custodial parent regular communication with the child. The custodial parent must also keep the non- custodial parent regularly advised of the child' progress in school, social activities, and so forth. (See Paragraph D below.)
Absent some special economic or other special circumstances, each parent should share in the cost of transportation for visitation. The share should be proportional to the parents respective income but other factors may also be considered such as which parent moved, why they moved, a parent's other expenses and other such factors.
The custodial parent will provide a letter/report to the other parent once every 60 days describing the child's progress in school, to include school photographs and examples of school work: the child's activities, to include awards, photographs and so forth; and the child's medical and general health condition.
MINIMUM VISITATION:
At the non-custodial parents' option, IN THE ALTERNATIVE,
EITHER:
Between September 1, and December 1, of each year, one continuous seven day period beginning at 9:00 a.m. on the first day and ending at 5:00 p.m. on the seventh day. Between February 1 and June 1 of each year, one continuous seven day period beginning at 9:00 a.m. on the first day and ending at 5:00 p.m. on the seventh day;
OR
For each of the months of September, October, November, January, February, March, April and May, one period of four consecutive days beginning Friday at 3:00 p.m. and ending Monday at 5:00 p.m. Also, the customary school spring vacation from 5:00 p.m. Friday to 5:00 p.m. on the following Sunday in every odd year.
Under either alternative:
The non-custodial parent shall give 30 days advance written notice of the times he/she will exercise visitation.
The visitation shall be arranged insofar as possible to coincide with school in-service days and holidays.
If two periods of visitation occur in one month (for example, the November four day visitation and Thanksgiving), unless otherwise agreed by the parties, there shall be just one period -- the longest period -- of visitation during that month.
In-even years:
Thanksgiving vacation from 7:00 p.m. Wednesday to 7:00 p.m. Sunday.
Winter School Vacation - from 3:00 p.m. on December 24, for a period of five days until 7:00 p.m. on the last day.
In odd years:
Winter School Vacation - from 6:00 p.m. the last school day before the holiday to 3:00 p.m. on December 24.
If there is a considerable distance and/or transportation cost, the non-custodial parent will have full Winter school holiday for two years, and the custodial parent will have the Winter school holiday for one year and so forth on an alternating basis.
The non-custodial parent will be entitled to six consecutive weeks, between June 15 and August 20. However, where distance and/or transportation cost make it impossible for the parent to have regular visitation during the year as described above, then the non-custodial parent will be awarded visitation for the entire summer beginning at the beginning of the school holiday and ending one week before school begins.
If the non custodial parent will be visiting the locality where the child resides, the non custodial parent may have two days visitation to be exercised in that locality provided he/she gives at least 20 days advance notice in writing and may have one day visitation to be exercised in that locality if he she gives less than 20 days advance notice in writing provided he/she gives at least 7 days advance notice in writing.