Parenting Time and Visitation
For decades, parties to a divorce action, and even the courts themselves, would often refer to the time that a child spends with parents as "visitation."
In more recent years, that term has fallen out of use and the term “parenting time” is used almost exclusively. In every state in the United States and in Michigan in particular, the court operates under the presumption that it is in the best interest of a child to have a deep, loving and involved relationship with both parents. In virtually every situation, children have the right to have a relationship with both parents. The only time that this right can be diminished or extinguished is if there is a clear and convincing showing that a child would be in physical, mental or emotional danger as a result of their relationship with a parent.
The issue of parenting time is usually the most emotionally exhausting aspect of a pending divorce action. In many cases, the parties, despite the hard feelings they may have for each other, can come to an agreement on a reasonable distribution of parenting time. A case in which the parties can come to a quick agreement is far less exhausting, moves through the court system much more quickly, and will cost the parties far less in legal expenses.
Unfortunately, there are cases in which the parties have stark disagreement as to what the distribution of parenting time should be. If the disagreement persists, then it will ultimately be up to the court to decide the “where’s and when’s” of visitation. In such situations, the court will attempt to carve out a visitation schedule which they believe is in the best interest of the minor child.
By the time a final Judgment of Divorce is granted, the issue of parenting time, whether by agreement or court order, will be fully resolved. But that does not necessarily mean that the specifics of parenting time can never be changed. Either parent always has the right to petition the court post-Judgment of Divorce, for a change in the parenting time schedule.
In order to be successful in having the court order a change in parenting time, the party seeking the request must demonstrate that there has been a “change in circumstances” which has affected the well-being of the child. For instance, a precipitous fall-off in grades at school could be convincing to the court as a change in circumstances meriting a change in the parenting time schedule. The court may find that there has been a sufficient change in circumstances if it can be demonstrated that one parent is unwilling or unable to provide care for a child with a medical problem. The same would hold true for mental health issues. These are but a few of an infinite number of situations which the court may find convincing. In contrast, if one parent has been required to work 50 hours per week instead of 40, the court would probably not order a change in parenting time. The event of one party remarrying is usually not sufficient to bring about a change in the parenting time order. The point is that each scenario is fact-specific. An experienced family law attorney will know how to review your specific facts and advise you about whether the court would be likely to grant a change in parenting time.
Despite a court order, there are situations in which one parent refuses to follow the court’s dictated parenting time. Willfully disregarding the court’s parenting time order is not advised and can result in punishment, including jail. If one party denies the other party parenting time, the aggrieved party can file a motion which the court and will usually hear in ten days or less. At that time, the party that has denied the other party visitation better have a really good reason why they chose to deny parenting time. In many cases, the judge can become quite outraged if she is convinced that one party took matters into their own hands and chose to make decisions in violation of the court’s parenting time order. It is not unusual for a judge to order the violating party to pay the attorney fees of the parent who had been denied parenting time.
The assignment of child support and the distribution of parenting time are very much intertwined. In almost every case, one party will be ordered to pay some level of child support to the other party. If it can be shown that both parties earn identical incomes and have a true 50/50 parenting time arrangement, then child support would likely not be ordered. However, such a scenario is a rarity. The State of Michigan publishes a formula which produces a child support recommendation. Barring any unusual circumstances, a court will almost always follow the child support that the formula recommends. The child support formula factors in:
- The earnings of both parties
- The amount spent on child care
- The amount spent on child healthcare insurance
- Obligations that one party may have to a previous family
- Which party will be receiving the benefit of the child’s tax exemption
Although the distribution of parenting time and assignment of child support are very much intertwined, one party’s failure to pay child support is never a sufficient reason to deny another party visitation. It is not unusual to have a judge state “Your child is not for sale.” Much like any other denial of parenting time, a judge could become quite upset to learn that parenting time was denied because of a child support delinquency.
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