Visitation cases have a different focus than custody cases

Posted Thursday, June 7th, 2012 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Visitation

Typically parents retain me to handle visitation cases, rather than seeking custody, when they have not had much recent contact with their child.  Often such parents are fathers who were never married to the mother and have not lived with the child.  Sometimes they are parents who had visitation terminated or supervised pursuant to a Department of Social Services intervention case. Other times they are parents who have lived a great geographic distance from the child.

These are all good reasons for seeking visitation as opposed to seeking custody.  The amount of legal work to pursue visitation is substantially less than the amount necessary to seek custody, so parents who merely pursue visitation save money.  Further it’s much easier, and often quicker, to obtain visitation than to obtain custody.  The court cannot award custody to every parent who seeks it but the court routinely grants visitation to all fit parents.

In my experience, parents who are merely seeking visitation are no different than parents seeking custody in their desire to focus on all the bad things the other parent does to or with the child.  For a custody case, where the judge needs to determine which parent can take better care of the child, a focus on the other parent’s weaknesses is relevant.  However, for a parent merely seeking visitation such a fixation is counterproductive.

When a parent is merely seeking visitation it doesn’t matter how bad the custodial parent is: the custodial parent’s deficits will not increase the visitation-seeking parent’s visitation.  Sometimes it can backfire.  If the family court becomes concerned that the non-custodial parent will nitpick and attack the custodial parent’s parenting, it may limit the non-custodial parent’s time with the child to reduce the child’s exposure to this animosity.  This is true even if both parents are hostile to the other.  This becomes a lesser concern if the custodial parent is the only parent attacking the other.  In that circumstance the court may attribute the inability to get along to the custodial parent and may actual extend the other parent’s visitation to ensure that the child is able to develop a healthy and sustained relationship with both parents.

For a parent who is in a realistic position to obtain custody it can make sense to seek custody and plead for visitation as an alternative.   This renders the custodial parent’s flaws relevant.  However for the parent who is not in a position to seek custody, the focus needs to remain on that parent’s strengths and not the other parent’s weaknesses.  The visitation-seeking parent who remains fixated on the other parent’s flaws needs to be redirected by his or her attorney.

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