The word divorce is usually not associated with warm thoughts and fond memories. Even the most amicable, uncontested divorce can cause sadness and bring a traumatic end to domestic tranquility, especially for the children of the marriage.
A bitterly contested marriage dissolution can worsen an already negative experience for a child, sometimes for a short period of time, sometimes for decades.
Where do post-divorce conflicts lie?
Parenting rights (custody and visitation) are the primary source of post-divorce conflict. It is in the best interest of all involved that these rights be clearly defined and understood as part of any final divorce agreement.
At times, circumstances can arise that may require that the current parenting rights agreement in place, whether court-approved or court-ordered, be modified. This, of course, can lead to a conflict that can affect not only you, your ex-spouse and your children, but grandparents and other family members, as well.
In light of this reality, it is important that you fully understand how you can modify visitation rights (and custody rights, for that matter) and, depending on whether you are successful or unsuccessful, what the consequences might be.
What does “visitation rights” even mean?
Before you consider taking steps to modify visitation rights in New Jersey, it’s important to understand what the law means by the term “visitation.”
Simply put, a parent who does not have primary custody of the children of the relationship is afforded a specified (either by agreement or court order) period of time during which they are permitted to spend time with those children, which is called visitation time.
It may consist of daytime or evening visits, overnight stays and weekends. Visitation periods may also include an occasional extended period of specific duration (such as extensive time during the summer break in the school year).
Visitation rights are established at or before a final divorce judgment is issued by the court. In most cases, a visitation schedule is set and the parents abide by it without much difficulty.
In general, this will contain:
- Residential schedule – the days and times the child spends or “resides” with the noncustodial parent.
- Holiday schedule – that also includes special occasions such as birthdays of family members.
- Vacation schedule – taking into account school breaks and the vacation time of each of the parents.
Should you consider altering your current agreement?
There are, however, times when one or both parents believe that circumstances have changed sufficiently to support a motion to modify visitation rights.
Regardless of the presence or absence of any other factor, the primary responsibility of the court in any custody or visitation matter is to ensure that the outcome is in the best interests of the child. That is the bottom line, something that many parents forget in the “heat of battle” in a divorce matter.
Modification of visitation rights may significantly impact custodial rights and vice-versa. For example, if one parent has primary custody and seeks a substantial decrease in the parenting time of the other, the outcome may result in the first parent having sole custody leaving perhaps no visitation rights for the other parent at all.
Factors the New Jersey Courts Take into Account
Courts generally prefer that parents share the responsibility of/have frequent contact with children of the relationship. However, the presence of certain factors will be used by a court to rule on a motion to modify visitation rights (applicable also to any custody modification decision).
The most significant of these factors include:
- Is one of the parties an “unfit” parent? In other words, does spending time with that parent pose a substantial risk to the physical, mental or emotional well-being of the child? Addiction to drugs and/or alcohol, mental illness, physical infirmities, immoral conduct and anti-social behavior are all reasons that may support an action to modify visitation rights.
- The stability of the home environment of each parent. Will the child be exposed to any unhealthy relationships? Say, for example, that the child’s father lives with a woman with whom he has a tenuous or volatile relationship. No matter how “fit” of a father he may be, a court may modify parenting time if it appears that spending time in that household causes the child emotional distress.
- The presence of domestic violence in the home, regardless of whether the child of the relationship is the victim of such violence.
- The quality of the child’s relationships with other members of the household (such as siblings, step-siblings, grandparents or other relatives). Again, the well-being of the child is paramount.
- If the child is deemed old enough by the court to make an informed, intelligent decision, the preference of the child is extremely influential in modifying the current visitation rights agreement.
- Both the ability and willingness of both parties to communicate and cooperate with each other relating to parenting matters.
- The willingness of each parent to accept the responsibility imposed upon them by the custody/visitation arrangement. In other words, courts loathe to force a parent to spend time with a child if that parent is reluctant to do so. An unwilling parent may not be an unfit parent, but time spent with an unwilling parent is probably not in the best interests of the child.
- A parent has relocated so far away that the visitation schedule can no longer be followed due to distance. An obvious example is if the noncustodial parent moves out of state. However, even a move to the other side of a large city can render it impractical, if not impossible, to maintain the same visitation arrangement, especially during the week when a schedule for school and extracurricular activities must be followed.
Modifying visitation rights is NOT an easy feat!
An attempt to modify visitation rights should not be taken lightly. Courts do not automatically grant such motions. They are even more hesitant to make multiple changes, in part because constant change is disruptive to a child’s life. An action to modify visitation rights, especially if commenced in anger, can have unintended consequences.
There are two additional forms of parenting rights that, although relatively rare, deserve mention:
Grandparents may be granted custody or visitation rights under very limited circumstances if they can demonstrate to the satisfaction of the court, by a preponderance of the evidence, that such visitation is in the best interest of the child.
Under this scenario, the law requires that any and all time the parent spends with a child must be monitored. This usually occurs when the parent has a history of child abuse, medical disabilities or psychiatric issues, to name a few factors.
The New Jersey Supervised Visitation program authorizes pre-approved community organizations to provide facilities and personnel necessary to offer opportunities for court-ordered supervised visitation.
Both of these parenting rights can be altered by bringing a successful motion to modify visitation rights.
Speak with an attorney!
There are many circumstances under which an action to modify visitation rights may be appropriate. Speak with an attorney experienced in this area to determine if such an action is appropriate for you.