Eugene E. Kinsey, Attorney at Law

323 Main St., 2nd Floor, Seal Beach, CA 90740

CHILD VISITATION LAW

IN CALIFORNIA

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General California Child Visitation Information

In making a child custody order between the parents in California, the court must also grant the other (noncustodial) parent "reasonable visitation rights" . . . unless it is shown that visitation would be "detrimental to the best interest of the child." [Ca Fam § 3100(a)]

Because of the importance placed on "frequent and continuing contact" with both parents, an order completely withholding a parent's visitation privileges may issue only upon a finding that any form of visitation with the parent would be "detrimental" to the child's best interest. [Ca Fam § 3100(a)] If the custody order does not provide for parent visitation rights but does not expressly withhold such rights, the noncustodial parent has an implicit right to "reasonable visitation."

Trial courts generally have broad discretion in defining a parent's "reasonable visitation" rights and establishing a visitation schedule. Subject to a few statutory limitations (below), the sole guideline is the child's best interest (Ca Fam § 3100(a)).

Factors Considered By The Court In Making California Child Visitation Orders

In all cases, child visitation orders must accommodate the paramount policy of assuring the child's health, safety and welfare and, to the extent consistent therewith, the policy preference for "frequent and continuing contact with both parents", except where such contact would not be in the child's best interest pursuant to the Ca Fam § 3011 factors. [Ca Fam § 3020]

Beyond this general framework, courts consider such practical matters as the child's age, maturity and special needs, the parent's physical proximity to the child's primary residence and, where appropriate, the child's own preference.

Improper Considerations In Making Child Visitation Orders

Visitation Not Tied To Payment Of Child Support: Parent visitation rights must be adjudicated independently of other issues before the court. Notably, a visitation order may not be tied to or conditioned upon the payment of child support . . . which has no bearing on whether parental contact would be detrimental to the child.

Parent's absence from family home or relocation: A parent's absence or relocation from the family residence cannot be considered in determining visitation (or custody) provided (i) it lasted only a short time and, during that time, the parent demonstrated an interest in maintaining custody or visitation, or maintained or made reasonable efforts to maintain regular contact with the child and demonstrated no intent to abandon the child; or (ii) the absence or relocation resulted from actual or threatened domestic or family violence by the other party. [Ca Fam § 3046(a)(1) & (2)]

Lifestyle, sexual preference, religious beliefs, etc.: Visitation rights cannot be restricted solely on the basis of a parent's "unconventional lifestyle," the parties' "opposing moral positions" or the "outright condemnation of one parent's beliefs by the other parent's religion" . . . unless there is evidence these factors are detrimental to the child. "In the absence of any indication of harm, [restrained visitation] is unreasonable and must be vacated." [Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1031, 243 Cal.Rptr. 287, 291]

Decision Making During Visitation Periods

The right to make ultimate decisions regarding the child's upbringing belongs to the parent with "legal custody"; decision-making authority does not shift between parents during visitation periods unless they have "joint" legal custody. [See Ca Fam §§ 3006 (sole legal custody), 3003 (joint legal custody)]

Child's Refusal To Visit

Implementing a visitation order necessarily turns upon the custodial parent's ability to make the child available for visitation. A custodial parent probably has sufficient control over a child of "tender years" to compel the child to visit with the other parent under the terms of the court order; and the custodial parent's failure to comply would thus be punishable by contempt.

But the rule is otherwise as to teenagers. Technically, teenage children remain subject to their parents' control until age 18 or marriage (see Ca Fam § 7505). Nonetheless, if a teenage child refuses to visit with the noncustodial parent per the terms of a court order through no fault of the custodial parent, the noncustodial parent is probably left without a remedy. Simply stated, it is unclear how the custodial parent would have the ability to force the child to visit. [See Coursey v. Super.Ct. (Coursey) (1987) 194 Cal.App.3d 147, 154-156, 239 Cal.Rptr. 365, 369-370--court erred in holding mother in contempt for violation of visitation order re 14-year-old child because no showing mother had ability to compel child to visit]

Nonparent Visitation (Grandparents And Others)

California law confers discretion on the court to grant "reasonable visitation" rights "to any other person [a nonparent] having an interest in the welfare of the child." [Ca Fam § 3100(a) --"reasonable visitation may be ordered to any other person . . ." (emphasis added); Barkaloff v. Woodward (1996) 47 Cal.App.4th 393, 398, 55 Cal.Rptr.2d 167, 170]

However, this right is limited. Parents have a 14th Amendment substantive due process "fundamental right" (a "liberty interest") to make decisions concerning the care, custody and control of their children. A state law that, as applied, allows trial courts to grant nonparent visitation rights over a parent's objection whenever the court determines such visitation may serve the child's best interest, unconstitutionally infringes on that right. [Troxel v. Granville (2000) 530 U.S. 57, 65-70, 120 S.Ct. 2054, 2060-2062 (invalidating application of Wash. statute authorizing grandparent visitation solely on "best interest" showing]

Therefore nonparent visitation rights in a case contested by a parent may constitutionally be granted only if, in applying the state statute, the trial court gives a presumption of validity or at least special weight to the parent's decision that the visitation would not be in the child's best interest. A court decision effectively presuming the opposite (that third party visitation should be granted absent a showing the child would be adversely impacted) directly contravenes the traditional (substantive due process) presumption that a fit parent will act in the child's best interest.

With regard to grandparents seeking visitation, parents' due process right to make decisions concerning their children's care, custody and control does not necessarily preclude a court from granting the nonparent visitation over the objection of a "fit" parent or parents. "The decision of fit parents regarding grandparent visitation is entitled to special weight, but not necessarily immunity from judicial review." [Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1484-1485, 1 Cal.Rptr.3d 185, 200]

"If a court can deprive fit parents of the custody of their children without violating the parents' fundamental right to the care, custody, and control of their children, then certainly a court can order grandparent visitation--a much more limited form of interference with the parents' custodial rights--without necessarily causing such a violation." [Fenn v. Sherriff, supra, 109 Cal.App.4th at 1486, 1 Cal.Rptr.3d at 201]

The noncustodial parent-petitioner, and not a contesting parent, must carry the burden of proof in these cases--i.e., demonstrating "special factors" that would warrant state interference with the parent's decision on the matter. [Troxel v. Granville, supra, 530 U.S. at 67-70, 120 S.Ct. at 2061-2062]

California Procedure In Child Visitation Cases:

The parties may - and are encouraged to - enter into a written stipulation (agreement) on visitation issues.

If the parties cannot agree, visitation orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action and may be modified at any time until the chilf(ren) turn eighteen. In contested cases, they are most commonly made:

    1. At the time of the filing of the initial documents in a "Temporary Restraining Order"

    2. Within a few weeks of the filing at a hearing on application for "Order To Show Cause"

    3. At the time of trial

Modification Of Child Visitation Orders:

Child visitation orders may be modified at any time before the visitation orders terminate as long as the party moving for the modification can show that there has been a change in circumstances affecting the welfare of the child(ren) since the last order.

Such changes in circumstances include (but are by no means limited to):

    • Change in residence of one of the parents. (This may require a motion for a "move-away order")

    • The desire of an older child to increase or decrease visitation.

    • Evidence of abuse of a child.

    • Alteration of the child(ren)'s school schedule

 

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