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Visitation and Visitation Issues

Visitation and Visitation Issues

By Maury D. Beaulier, Esq.


A parent that is not awarded physical custody has a visitation schedule.† Often when a parent is awarded visitation rather than physical custody, they feel as if they are being characterized as an inferior parent.† That is not what "visitation" was intended to mean.† Nonetheless, over the years, that stigma has been attached to it.† It is often better to think of custody and visitation schedules as parenting schedules rather than becoming caught up in labels.† Currently, there is legislation being considered in Minnesota to remove many of these emotionally laden labels in order to concentrate on parenting schedules that work.



SPECIFIC SCHEDULES PREFERRED.

Under the current system, Minnesota Statutes prefer that Courts enter orders with specific visitation schedules to avoid disputes rather than leaving the issues open. Parents may agree on any schedule that serves the childís best interests. Moreover the parents may modify any schedule after a divorce so long as they both agree. A good way to think of a visitation schedule is to view it as a safety net in the event the parents cannot agree in the future. In such an instance, it becomes a reference point with black and white details. Generally speaking, the court will not disturb an agreement reached by the parents.

COURT ORDERED SCHEDULES.

If the parties are unable to reach a visitation agreement, the Court will craft its own schedule. Oftentimes, Court ordered schedules do not make either party happy which results in later disputes. As a result, it is usually in the best interests of the child(ren) and the parents if agreement on a schedule is reached. If left up to the courts, you are likely to see a common boilerplate schedule similar to the following:

Weekly Schedule: Alternating weekends from Friday - Sunday and one evening per week.

Holiday Schedule: The parties shall alternate legal holidays including Christmas Eve Day, Christmas Day, New Yearís Day, Easter Weekend, Memorial day Weekend (Fri-Mon), Independence Day, Labor day weekend (Fri - Mon), and Thanksgiving day. The child shall be with the mother on motherís day and the father on fatherís day.

Extended Schedule: Each parent shall have two (sometimes up to four) consecutive or non-consecutive weeks with the child each summer upon 30 days advance written notice to the other party.

NON-PAYMENT OF CHILD SUPPORT AND VISITATION RIGHTS.

The Legal system treats visitation and child support as separate issues. MSA 518.175, Subd.1 specifically states that "a parentís failure to pay support because of the parentís inability to do so shall not be sufficient cause for denial of visitation."

DENIALS OF VISITATION.

A court may order make-up visits to compensate a person denied visitation. The compensatory visitation should be of the same type and duration or greater as the visitation that was missed. The Court may also:

  • impose a civil penalty of up to $500 on the party denying visitation. (This civil penalty is paid to the Court, not the party that was denied visitation):
  • find the party denying visitation in contempt of the Courtís order;
  • require the party denying visitation to post a bond in order to ensure compliance; award reasonable attorneys fee to the party denied visitation;;
  • require the party denying visitation to reimburse the other party for any costs;
  • change custody for unwarranted, continuous and systematic interference with visitation;
  • award any other remedy that the Court deems reasonable. (MSA 518,175, subd. 6).

PARENT CARE VS. DAYCARE.

Minnesota Statutes 518.175, subd. 8, specifically allows a Court, in its discretion, to allow a non-custodial parent additional visitation to provide child care while the custodial parent is working. However, in making such a determination, the Court must consider the parties ability to cooperate, whether they have methods for resolving disputes, and whether domestic abuse has occurred.

DISPUTE RESOLUTION BY MEDIATORS AND VISITATION EXPEDITORS.

The Parties may agree or the Court may order the parties to mediate visitation disputes or to submit those disputes to a visitation expeditor. The records and statements made to a mediator or a visitation expeditor are confidential and cannot be later used in Court. Moreover mediator and visitation expeditors cannot be called as witnesses.

  • A mediator helps the parties to communicate and resolve their differences by agreement.
  • A visitation expeditor, by contrast, may begin by attempting to mediate the dispute. However, is a resolution is not reached, the expeditor is authorized to settle disputes by enforcing, interpreting, clarifying or addressing issues not specifically addressed by an existing order. A visitation expeditor may be appointed to resolve a one time dispute or to provide ongoing services. Generally speaking, use a visitation expeditor is a fast and less costly way to resolve disputes. The costs are generally divided between the parties.



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