Am Jur 2d - Divorce and Separation § 891

IV. Child Custody and Support; Visitation Rights, A. Child Custody; Visitation Rights, 7. Visitation Rights, a. Rights of Parents, § 891 - Generally

Visitation rights are ordinarily afforded a parent who is not the primary caretaker.[1] The granting or denying of visitation rights lies within the trial court's sound discretion.[2] A trial court has an independent responsibility to determine questions of visitation of minor children according to their best interests,[3] which responsibility cannot be controlled by an agreement or stipulation of the parties.[4]

A parent's right of visitation is not absolute,[5] and the court, when granting the custody of a minor child to one parent, has the power to deny visitation rights to the other parent when the circumstances justify such an order.[6] A court may also impose restrictions on visitation by noncustodial parents.[7] Nonetheless, only under extraordinary and exceptional circumstances should a parent be denied the right of visitation,[8] such as where the court is convinced that visitations are detrimental to the best interests of the child.[9] In view of the importance of the parent-child relationship and the likely benefits which a child will receive from visitation with the parent who does not have custody, courts will attempt to preserve visitation rights whenever possible, in order to avoid the estrangement of parent and child.[10] However, the needs of children are paramount, while the desires of parents are secondary.[11] Nevertheless, the courts must also give due consideration to the natural and inherent rights of parents.[12] Visitation should not be conditioned upon the wishes of the child, as a parent has the right to attempt to establish a relationship with the child.[13] A child's apparent indifference to his or her parent may be insufficient ground for denial of visitation rights, and even a child's stated desire not to see his or her parent at all may not be dispositive, in view of the great benefit that can result from reconciliation and subsequent warm relations.[14]

It is the duty of the parents, irrespective of other considerations, to lend their aid in creating an atmosphere that will foster the best interests of the child and neither has the right to use the child as a pawn or club in dealing with the other.[15]

Cases:

Trial court did not abuse its discretion in awarding mother, as non-custodial parent, visitation with 16-year-old child of one weekend a month and two evenings per month, in addition to alternating holidays and vacations; child told trial court during in camera interview that he wanted to spend time with mother, and that he wanted to see her one weekend a month, and maybe a little bit more. Helen S.K. v. Samuel M.K., 288 P.3d 463 (Alaska 2012) .

Whether the best interests of the child dictate a change of custody is left to the broad discretion of the trial court, and a mere difference of opinion or judgment cannot justify the intervention of appellate court. Feinberg v. Feinberg, 114 Conn. App. 589, 970 A.2d 776 (2009) , certification granted in part, 293 Conn. 901, 975 A.2d 1277 (2009) .

A court has no authority to compel visitation between a child and one who is neither a parent, grandparent, or great-grandparent. L.D. v. Florida Dept. of Children and Families, 24 So. 3d 754 (Fla. Dist. Ct. App. 3d Dist. 2009) .

Visitation rights are to be strongly favored and will be denied only in an extreme situation in which the children's physical, mental, or moral health would be endangered by contact with the parent in question. Pacheco v. Marulanda, 108 A.3d 1007 (R.I. 2015) .

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1   In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) ; Radford v. Matczuk, 223 Md. 483, 164 A.2d 904, 88 A.L.R.2d 140 (1960) .

 A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Unif. Marriage and Divorce Act § 407(a) (1970).

2   Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007) ; Soohoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) (broad discretion); Eickbush v. Eickbush, 2007 WY 179, 171 P.3d 509 (Wyo. 2007) .

 The trial court has wide discretion in matters involving visitation, which discretion necessarily extends to matters such as assigning weight to evidence and assessing the credibility and demeanor of witnesses; conflicts in the testimony, questions about the credibility of witnesses and the weight to be given testimony are for the trial court to resolve. In re Peirano, 155 N.H. 738, 930 A.2d 1165 (2007) .

3   In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 937 A.2d 177 (2007) ; In re Peirano, 155 N.H. 738, 930 A.2d 1165 (2007) (overriding concern); Misty D.G. v. Rodney L.F., 221 W. Va. 144, 650 S.E.2d 243 (2007) (paramount and controlling factor).

4   Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) .

5   Wilkins v. Ferguson, 928 A.2d 655 (D.C. 2007) .

6   Radford v. Matczuk, 223 Md. 483, 164 A.2d 904, 88 A.L.R.2d 140 (1960) ; Hill v. Hill, 423 S.W.2d 943 (Tex. Civ. App. Houston 1st Dist. 1968) .

 As to particular circumstances affecting the grant or denial of visitation rights, see §§ 892 , 893 .

7   Lange v. Lange, 175 Wis. 2d 373, 502 N.W.2d 143 (Ct. App. 1993) , on reconsideration, (May 18, 1983).

8   In re Two Minor Children, 53 Del. 565, 173 A.2d 876 (1961) ; Taylor v. Taylor, 282 Ga. 113, 646 S.E.2d 238 (2007) .

9   Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 22 A.L.R.4th 961 (1981) ; Quinn v. Quinn, 87 A.D.2d 643, 448 N.Y.S.2d 248 (2d Dep't 1982) .

10   In re Marriage of Matthews, 101 Cal. App. 3d 811, 161 Cal. Rptr. 879 (1st Dist. 1980) ; Uncle v. Uncle, 154 A.D.2d 743, 546 N.Y.S.2d 187 (3d Dep't 1989) .

 A parent has a fundamental liberty interest in the care and custody of his or her child, and prohibiting visitation certainly disrupts and, if the ban is prolonged, may destroy, the parent-child relationship. In re D.B., 947 A.2d 443 (D.C. 2008) .

11   Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996) .

 Although visitation by a noncustodial parent is an important right, it is one that must yield to the greatest good of the child. In re Peirano, 155 N.H. 738, 930 A.2d 1165 (2007) .

12   Bradford v. Bradford, 1958 OK 84, 327 P.2d 684 (Okla. 1958) .

13   Reynolds v. Reynolds, 109 N.C. App. 110, 426 S.E.2d 102 (1993) .

14   Marciano v. Marciano, 56 A.D.2d 735, 392 N.Y.S.2d 747 (4th Dep't 1977) .

15   Nash v. Byrd, 298 S.C. 530, 381 S.E.2d 913 (Ct. App. 1989) .

 A wife had a duty not to turn the child away from the husband, in light of the fact that visitation between the child and the noncustodial parent was presumed to be in the best interests of the child and was not merely a privilege of the noncustodial parent, but a right of the child. Hurt v. Hurt, 2001 ND 13, 621 N.W.2d 326 (N.D. 2001) .

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