Visitation cases mandate a narrower focus than custody cases

Posted Friday, October 6th, 2023 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Visitation

Not all litigation over time with a child is actually a battle over physical custody of that child.  A subset of “custody” litigation involves only the level of visitation that a “non-custodial” parent should have.  I seek lower retainers for visitation cases than I do for custody cases because visitation cases have a narrower focus and involve less work.  Yet I often observe my clients who seek visitation fail to understand that a visitation case suggests a narrower focus.

I typically have two types of clients who fall under the rubric of “visitation” cases. One type is the client who either is happy to merely establish visitation or has commitments (typically work commitments) that are not conducive to even 50/50 physical custody.  The goal for these parents is to obtain a level of visitation that allows them to enjoy a relationship with the child without providing them more visitation time than they can use.[1]

The second type are clients who have fitness concerns that have led a family court to reasonably impose supervised, or no, visitation.  No parent goes from supervised visitation to primary physical custody.[2] The goal for these parents is to get them rehabilitated to the point in which they can obtain unsupervised visitation.

In a typical custody case, the goal is to prove one is the “better” parent.  In such cases, all aspects of each parent’s parenting ability is relevant, as the court must ultimately compare the two parents and determine which one has the better claim for custody.  Hence the broad focus (and greater expense) of custody cases.

In contrast, with visitation cases, the focus is much narrower. My only concern regarding custodial parents in visitation cases is whether they are unduly resistant to the other parent’s relationship with the child.  All remaining focus is on the non-custodial parent’s relationship with the child and that parent’s ability to parent the child.

Too often, and repeatedly, my visitation-case clients want to focus on the custodial parent’s parenting flaws. The feeling is that they are under attack so they should attack the other parent.  This is an urge that must be actively resisted, as it is counterproductive.  For the unfit parent seeking to prove fitness so as to obtain unsupervised visitation, a focus on the other parent’s flaw looks like deflection—a refusal/failure to understand the circumstances that led to supervision. For the visitation-case parent who merely lacks the ability or desire to be the primary physical custodian, to attack that custodian is to justify that custodian’s resistance to more time with the child.

In a true custody case, all aspects of the other parent’s parenting ability are relevant. In a visitation case, the only relevant issue regarding the custodial parent is his or her willingness to encourage the other parent’s relationship with the child.  Parents who are not seeking custody need to understand this.

[1] Having more court-ordered visitation time than one can realistically use leads to conflict with the other parent and disappointment for the child.

[2] This assumes the supervision requirement was justified. Where one parent obtains an order of supervised visitation against the other parent based upon false allegations of abuse or neglect, the family court will sometimes reverse custody when such false allegations are proven.

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