Creating a Visitation Agreement: a Critical Step in the Divorce Process

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By Byrd Legal Counsel

Published: Jun 29, 2005

Visitation is often the most contentious issue divorced parents have to deal with on an ongoing basis. This is because issues concerning visitation are rarely black-and-white and often require flexibility as circumstances change. Visitation can also be the only remaining control mechanism divorced parents have over each other. Creating a detailed visitation agreement, as part of the divorce process, can help prevent years of stressful encounters and prove beneficial to both parents and their children.

Florida's family law courts believe that it is usually in the child's best interest for both parents to have frequent, unhampered and meaningful access to their children. A visitation agreement made by both parents is preferable to a court-imposed solution. However, if parents are unable to agree on visitation, courts frequently order visitation according to commonly used or established guidelines. The details of those guidelines are extensive and beyond the scope of this article. A critical theme throughout those guidelines is fairness to both parents. It is helpful to keep this theme in mind when negotiating your own visitation agreement.

Family law courts are "courts of equity." Historically, courts of equity based their decisions on fairness, given the case's unique set of circumstances, rather than written law. Today, there is a great deal of written law to cover almost any family law matter that might arise. However, courts still strive to establish reasonable terms that are fair to both parents when determining issues of visitation.

In determining reasonable visitation, a court will give due regard to many factors, including: the age of the children involved, their educational commitments, health and social factors, business commitments of the parents and the geographical distances between the parents. All of these factors can and will change over time. Therefore, a detailed visitation agreement is simply a good starting point for what may well be a decades-long process requiring both flexibility and a commitment to fairness.

There are three main areas that must be addressed when creating a visitation agreement:

Visitation Schedule – A visitation schedule should anticipate what time of day visitation will begin and end. Further, the schedule should specify on which days of the week and what weeks of the year visitation will occur. What Holidays will the children spend with each parent? Will those Holiday visits alternate from year to year? Visitation on special days such as Birthdays, Mother's Day and Father's Day should be clearly spelled out.
Exchange – Parents often forget to specify in their agreement how the children will be exchanged. While it is a good idea to set this out in the visitation agreement, it is a good idea to discuss the assumptions that it is based on and some plan for adjustment if the situation changes. Again, flexibility and fairness are essential. If parents live a distance from each other or relocate after the dissolution of marriage, the method of exchange can quickly become a point of great contention. A commonly used visitation schedule requires that the children be picked up and dropped off at the home of the primary residential parent. This is because it is frequently the home that was occupied by both parents when they were still married. It may not be fair in all situations, however, that the secondary residential parent be responsible for both picking up and dropping off the children at the home of the primary residential parent. For instance, job schedules may make it difficult for one parent to pick up or drop off the children in a timely manner. Weekend plans may call for an adjustment to the regular pick up and drop off routine. If the primary residential parent moves further away they should be willing to share the responsibility of transporting the children for pick up or drop off.
Communication – It is vital to agree to a method of communication regarding issues that concern the children, including visitation. If a parent won't be able to meet their obligation, as determined by the agreed upon schedule, how will they notify the other parent in a way that minimizes the impact of the unmet obligation? How much advanced notice should be given if a visit must be canceled? Will third parties be involved in the communication process? Certainly the method of communication should avoid the use of the children as messengers as much as possible.

Of course, parents can agree between themselves to modify the visitation agreement as life's circumstances change and individual needs develop. Such modification can be informal, on an as-needed basis, or it can be formalized by petitioning the court if there has been a substantial change in circumstances.

If the parties cannot agree to a modification of the visitation agreement and the court is asked to settle the dispute, a great deal of weight will be given to the agreement reached during the divorce process. Once the terms of visitation are specified in the divorce decree, it can be extremely difficult to convince the court to change those terms. You often must prove that the children's welfare is being detrimentally affected by the existing agreement. Proving such a detrimental impact can be both difficult and costly. Therefore, the terms of visitation agreed upon during the divorce process are frequently the terms that remain in affect throughout the child's upbringing.

Divorced parents should remember the court's belief that it is in the child's best interest for both parents to have frequent, unhampered and meaningful access to their children. Fairness and thoroughness in adopting a visitation agreement and fairness and flexibility in applying the agreement will ensure that the child's best interest continues to be served by the agreement.

Last modified: Jun 29, 2005 11:16 AM