Chapter 7. Visitation

1. What is visitation?

Visitation is the time the parent who does not have physical custody (the "non-custodial parent") spends with the child. It can be for very short periods (for example, one hour a week) or for longer amounts of time (weekends and overnights). If the child ends up being with each parent about half the time, it could be viewed as shared physical custody.

2. Does he have visitation rights?

If the person you have separated from is the biological father (whether he is or was your husband, or has “acknowledged” or "adjudicated" as the father of your children), and he requests visitation in court, he will usually be granted visitation rights if it is in the children's best interest. “Acknowledged” means that you and he have signed an agreement that he is the father.  “Adjudicated” means he has been declared the father by a judge.

If we were married?

If there is no court order, parents have shared legal and shared physical custody, and their time spent with the children is not usually looked at as visitation. If you are married but living apart, you may have worked out an arrangement between you. If you have not been to court, the law presumes you and your husband have shared legal  custody, but not shared physical custody. If or when you go to court, a decision would be made about custody and visitation and would be put in a court order or judgment.

If we were not married?

Just because you were not married does not mean he cannot visit the children - whether he is legally your children's father is important. If you separate from your boyfriend, he will need to go to court to establish his visitation rights. (See Chapter 9).

If he is not the biological father?

• Stepfathers very seldom have visitation rights after a separation.
• Adoptive fathers do have visitation rights after a separation.

3. Do I have to let him visit even if he is not paying any child support?

In Massachusetts, visitation and child support are not linked. Just because someone is not paying support does not mean he loses the right to visitation - just as it is not automatic that someone can see his children simply because he is paying support for them. Visitation rights are determined by whether or not visits are in the children's best interest.

4. Can visitation be limited?

Visitation may be limited by the judge if you can convince her that it is not in the children’s best interests for them to be with the other parent (because of drug use, physical violence, or excessive drinking, for example). You must be prepared, however, to show the judge the seriousness of these problems and why the children are at risk. The burden of proving your claims is on you.

5. What ways can the judge limit or restrict visitation?

• One restriction is "supervised visitation.” Some cities and towns have visitation centers where parents are monitored and reports are kept on what happens during the visit. In other places, women rely on friends, relatives, or members of their religious community to supervise. Be prepared to suggest a willing and able supervisor to the judge.
• Visitation can be restricted by the amount of time your child spends with his father (for example, no overnights).
• Visitation can be limited to a specific place (for example, the mall or a playground).
• Visitation can be limited with other specific restrictions, for example:
• "No drinking for 24 hours before visitation."
• "Father must attend Alcoholics Anonymous (AA) weekly to have a weekly visit."
• "Father must attend parenting classes."
• "Father cannot have the child around a certain person."

Ask the judge to include restrictions in the visitation order if you feel it is necessary for your child's safety. Again, you will have to prove the necessity of the restrictions you request.

6. What if he physically abused me but not the children?

Even if the children were not physically abused, they may have suffered trauma or great upset from watching or hearing you be abused. If it causes further trauma for them to be around your abuser, or if they are afraid of him, explain this to the judge. It will help if you have an "affidavit" or statement from, for example, the child’s therapist who might be able to discuss the harm of unlimited contact.

7. Can there be no visitation at all?

Judges rarely deny visitation. It is more likely that visitation will be limited or restricted in some way.

8. Do I have to go to court for visits to happen?

After a separation, some people work things out between themselves. If there has been abuse, this is not usually easy to do. The following are court procedures under which a court can order visitation:

• Complaints for Divorce, Separate Support, Paternity, Custody, or Support-Custody-Visitation can be filed with the Probate and Family Court (under provisions of Massachusetts General Laws Chapters 208, 209, and 209C). Only the Probate and Family Court can order visitation under a 209A protective order. (See question 12 and Chapter 9)
• Motions for a Temporary Order of Visitation can be brought under the above complaints.

If you or the other party wants a court order for visitation, you could file for one under the procedures listed above. (See Chapter 12).

9. We are in court because the Department of Revenue (DOR) has brought a child support case. Do I have to let him visit my children?

If you receive TAFDC, the Department of Revenue/Child Support Enforcement (DOR/CSE) can bring your abuser to court to try to establish a child support order. (However, see Chapter 2, questions 10 -13 about good cause waivers).

DOR is not supposed to help make agreements on visitation or custody. They are only supposed to deal with child support. If there are abuse issues, you should tell DOR as soon as they contact you, and remind them when you go to court. If the father of your children did not serve you with any court papers telling you he wanted to bring up the issue of visits or custody, he should not be allowed to bring these issues up at the child support motion hearing. If the father is going to ask the court for visits or custody - which, if the court finds him to be the father, he now has a right to do - he has to send you a notice for another day in court. That means you get time to prepare an argument explaining why visits are not in the children’s best interests.

If for some reason when you are in court for child support with DOR and issues other than child support do come up, such as visitation, you should explain to the judge that there are abuse issues involved in your case. Tell the judge that your abuser did not notify you that he would be bringing up these issues, and that you would like to get legal advice. (See Chapter 3 on child support and Chapter 9 on paternity).

10. Can I ask for an investigation about visitation?

If you and your abuser cannot agree as to what visitation he should have with the children, or where it can safely take place, you can ask the Court for an investigation about visitation by a neutral third party. You can ask the judge to appoint a "Guardian Ad Litem" (GAL) to look into the matter. You can submit a motion asking the judge to appoint a GAL or you can respond to your abuser's request for visitation with this request. The cost of the GAL can be split by the parties, paid by one party, or, in some cases, paid by the State.

The GAL (who is usually an attorney or mental health professional) should talk with various people who are involved with your child. The GAL may also talk with your child, depending on his or her age. You should cooperate with the GAL, give the names, and phone numbers of people who are familiar with your child and who can support your position. The GAL will report to the judge with recommendations about visitation based on the best interests of the children.

Be aware that the GAL could disagree with your position and recommend to the judge something you do not want. You should think about the strength of your case before asking for a GAL to be involved. Judges do not always go by the recommendation of the GAL, but they usually weigh it heavily.

11. Even if I do not want it, can the Court order an investigation?

You should know that the judge on her own may order an investigation by a GAL, a family service officer, or another investigator connected to the court to look into the issues surrounding visitation.

12. Can my abuser get visitation if I have a 209A protective order against him?

District courts are not supposed to make visitation orders on 209A protective orders, so your abuser should not be able to get visitation in a district court proceeding.
If you get a 209A protective order in Probate and Family Court (see Chapter 5), visitation may come up at those hearings if your abuser asks to see the children.

Remember, only the Probate and Family Court can make orders concerning visitation. The visitation section on the 209A complaint form is very specific, so you should fill it out carefully and be sure to tell the judge what you want and why. For example, you can tell the judge you want the children to be transported to and from visits by your brother because you are afraid to see your abuser.

If your abuser does not go to the 209A extension hearing, or if no provisions are made for visitation at that time, he may later bring a Motion for Visitation in Probate and Family Court.  Probate and Family Courts are not supposed to consider defendants’ requests for visitation rights in a 209A case.  That is because Chapter 209A only provides for orders that are requested by the plaintiff.  The plaintiff can request a visitation order in a 209A case in the Probate and Family Court, including supervised or restricted visitation. (See Question 8).

13. When he picks up the children or brings them back, he starts fights. What can I do?

If the other parent uses drop-off and pick-up time to abuse or harass you, things can be done to make you safer. For example, you can use a "third party go-between" (to transport the child to and from visits, or to allow his or her house to be the drop-off point). Some visitation centers can also be used as exchange points, with each parent using a separate door and coming at staggered times so they never have to see each other. Some people use public places, like fast food restaurants or the mall, as exchange points.

14. He is not obeying the visitation order. What can I do?

It is a good idea to keep a "visitation journal" or notebook in which you keep track of whether he follows the court order. If he is not visiting when he is scheduled to visit, keep track of the days and times he misses. If there is a pattern of missed or late visits, you might want to consider going back to court and having the order changed. You would do this by motion or by filing a Complaint for Modification.

You can also file a Complaint for Contempt if he does not follow the court order. However, a Complaint for Contempt should only be used when there is a serious and continuing problem, like he is drinking around your child against the court’s specific order, for example.   The Court should not be used when there is no serious problem needing to be addressed. . If he is ten minutes late one time for a scheduled visitation, for example, this does not warrant a Contempt Complaint.

15. He is taking me to court for contempt saying I am not following the visitation order. What does this mean?

Contempt hearings are very serious. You should take this matter very seriously and make sure you go to court on the day on the summons. If you have not done what he put down on the Complaint for Contempt, tell this to the judge. If you have witnesses, bring them to court. If you have documents, bring them (for example, you did not let the children go on a scheduled visit because they were sick and you have a doctor's note from when you took the children in for treatment). You should not have to wait until the hearing date to first explain your side of things; you should file an Answer to the Complaint for Contempt beforehand saying why you should not be found in contempt of the court order; check the summons to see when the Answer is due. An original of your Answer goes into the court file for the judge to read. Send a copy of the Answer to the children's father.  Of course, you still have to go to court the day of the hearing, too.

16. What if I am not following the visitation order?

It will be helpful if you file an Answer to the Contempt before the hearing. The judge will hear both sides and will make a decision.

If you have done what he put down on the Contempt Complaint (for example, you did not let him see the kids), tell the judge your reason for acting as you have (for example, he was drinking and it wasn't safe to let the kids go). Explain the emergency behind your decision. Be prepared for the judge to be very concerned with your actions. Judges expect court orders to be obeyed. Be polite to the judge. Acknowledge that you understand a court order needs to be obeyed.

If there is no emergency, you should file a Complaint for Modification to change the visitation order before taking matters into your own hands.

If you are found to be in contempt, one of the things the judge might order is that missed visits be rescheduled.

17. He told me I could keep the kids on his weekend, now he is bringing me to court for contempt. What should I do?

Tell the judge he gave you permission. If you have witnesses, bring them. For example, if he talked to your sister about the Easter egg hunt you and she were giving for the children that weekend, have her come to court. Tell the judge you understand a court order needs to be obeyed. Explain that he gave his permission. In the future, get his permission in writing. At the least, write down your understanding of the agreement, make a copy, date it, and send it to him.

18. What if I want to change the visitation order?

If his visitation rights were granted in a court judgment, you will need to file a Complaint for Modification showing a "substantial and material change in circumstance" since the court judgment. The court wants to know what is different since the last time you were in court. If there is an immediate situation that needs to be resolved, you can file a Motion for Temporary Orders along with the Complaint and take care of both matters at once. The Motion for Temporary Orders will be served on the father at the same time he is served with the Complaint for Modification.

If his visitation rights were granted in a "temporary order" of the court, you need to file a Motion to Modify to change them. You still need to be prepared to show the judge why the change is needed.

If you need to change or suspend the visitation because of domestic violence, you can request a 209A protective order (see Chapter 5) and request that he have no contact with your children. If you already have a 209A protective order and want to change the visitation rights in it, you can file a Motion to Modify the 209A order.

19. Do his parents have the right to visit my children?

Yes, but only under certain circumstances. In Massachusetts, the law states that grandparents have the right to ask for visits, if:

• you and he are divorced; or
• you and he are married but living apart and subject to temporary orders or a judgment of separate support; or
• he was found to be the father (his paternity was adjudicated in a Court action, or he signed an acknowledgment of paternity which was approved by the Court), and you and the father are living apart.

His parents may be granted reasonable visitation if they show

• it is in your child's best interest;
• they have had a significant relationship with the child; and
• that not granting them visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare

If visitation with his parents would not be in your child or children's best interest, explain why to the judge (for, example, the court has ordered the father not to contact the children and the proposed visits are just a way for your abuser to have access to the children, the grandparents drink alcohol in the presence of the children, etc.). You have the right to make his parents go to court if you do not want them to see your children.

• If his paternity was not adjudicated or acknowledged, his parents do not have rights to visitation. They have no "standing" to ask for them in Court.
• Note that for your parents (the maternal grandparents) to get visitation rights there is no need for him to have been found to be the father through a paternity adjudication, or through an acknowledgment.

20. He is refusing to visit. What can I do?

Unfortunately, there is nothing you can do in court to force him to see or spend time with his children. But, if he is not exercising his court visitation rights and it is disrupting your or the children's schedule, you can go to court to modify the visitation. For example, you are missing your Saturday classes while waiting for him, and the children could go to soccer at that time. (See question 18).

If this is an ongoing problem, you can try modifying the visitation in court rather than just take the children somewhere else at that time. If you do not, and he decides to resume his visitation, he may bring you to court on a Complaint for Contempt. If he does bring you to court on a Complaint for Contempt, tell the judge about his pattern in the past and how long he went without visiting the children. It will help if you have kept a "visitation journal" marking the times he comes.  The less the non-custodial parent exercises his visitation rights, the less likely the court is to hold the custodial parent in contempt.

21. His new girlfriend is with my children during the visits. What can I do?

Unless she poses a risk to your children, there is not much you can do. If she puts the children at risk, you can ask the judge to put in the visitation order that your children not be around her. If your abuser does not visit with the children, but instead always goes out and leaves the children alone with his girlfriend during his visitation time, you could ask to reduce his visitation rights.

If it is the case that she is simply around when he has his visits, there is not really anything you can do in court. Visitation is his time to be with the children. If he has new relationships, it is his choice to introduce his children to the new partner and have the children spend time with that person.  

22. He is always asking my children about my love life. He also puts me down in front of them. What can I do?

Unless the visits are supervised, there are no "visitation police" to ensure fully appropriate visitation. You can ask the judge to put in the visitation order things like:

• "No denigrating (putting down) the other parent in front of the children."
• "The father will not involve the children in adult matters or conflicts."
• "The father will not use the children to pump for information about the mother."

If these are in the order and he still does them, then you can later file a Complaint for Contempt or a Complaint for Modification and perhaps reduce his visitation if the situation is not resolved. You could also ask the judge to order him to go to parent education classes to learn how to interact appropriately with children.  Realistically, however, there is not much you can do to change him. Words on paper will not make him a good parent. If things become a real problem, and you can demonstrate the harm to your children (maybe with a therapist), you can go to court to change his visitation.