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Divorce Resources for Women

Understanding Visitation Rights and Schedules in North Carolina

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What are your visitation rights? As a result of your separation or divorce, you will have to determine where your children will live and the logistics of visitation. Child custody and visitation schedules can be decided by the parents or, if an agreement cannot be reached by the parents alone, the courts. The courts main focus when deciding on visitation and custody is the best interest and welfare of the minor children, with an emphasis on the children’s safety.

Your Right to Visitation

The issue of your parental right to visitation often arises in cases where custody is not shared equally. When one parent has been granted primary custody, the other parent still has a right to visitation assuming there are no safety concerns for the child in question. Exercising this right requires both parents to be reasonable and considerate of the practical and logistical limitations. Factors such as the child’s age, schedule, and distance from the non-custodial parent are influential over the scheduling of visitation. Other factors include the work schedule of both parents.

Terms of Visitation in your Agreement

In amicable situations , you will create a visitation agreement that outlines the specific terms and schedule as well as special dates such as federal holidays and birthdays. If done properly a visitation agreement can be a great accountability tool, capable of fostering a healthy environment for your child to adjust to the separation while also preventing conflict between you and your ex.

Your custodial schedule and visitation agreement should be detailed, specific, and formed with all the relevant information in mind so you can avoid surprises or complications. It is best to include provisions for modification, stating that every January the parties will meet to compare their calendars, consider the impact of any changes in their circumstances, schedules, and that of the minor child’s.

Types of Visitation

Weekend and weekday visitation:

The bread and butter of a visitation agreement would be the weekend split between parents. The actual amount of time and frequency of these visitations will depend on the specifics of your case (and again, the welfare and safety of your child).

A typical weekend visitation agreement would read like this:

Weekend Visitation.  Secondary custodian shall have the right to visit with the minor child(children) every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.  This visitation shall commence on the first weekend subsequent to the entry of this Agreement.

In the model visitation agreement, the primary custodian is the parent that spends more time with the children and the secondary custodian refers to the parent that spends less time with the minor children.

Weekday visitation can also be part of the agreement, and a typical term might look like this:

Weekday Visitation.  With one week’s prior notice to primary custodian, secondary custodian, on evenings convenient to primary custodian, shall have the right to visit with the minor child(children) from late afternoon until the minor child’s bedtime two evenings every week.

If your agreement includes weekday visitation, you should be realistic in what terms you agree to. Some parents can be open and honest about when it’s “convenient” for the other to have visitation, but if you are worried your ex may use this vagueness to deprive you of time with your child it may need to be written out more clearly.

Recognized holidays:

The visitation schedule should factor in all major holidays with the assumption that you and your ex will not be spending those holidays together. One way to split major holidays is to give each parent the same amount of major holidays with those periods of custody alternating each year. You may wish to include other holidays based on your religious or cultural norms, and can negotiate for specific holidays over others if you know they are of greater importance to you than they are to your ex. For example, if you are a devout follower of Judaism while your ex identifies as agnostic, you may wish to bargain for custody every year during Hanukkah or Yom Kippur, and might be willing to give your ex every Easter in exchange.

Here is an example of the terms regarding major US Holidays:

Thanksgiving and Easter Vacation Visitation. Primary custodian shall have custody of the minor child during the Thanksgiving and Easter holidays in each even-numbered year. Secondary custodian shall have custody of the minor child during the Thanksgiving and Easter holidays in each odd-numbered year. Custodial time shall begin when school recesses for such holiday and end at 6:00 p.m. on the day before school resumes.

Christmas Visitation. In each even numbered year, secondary custodian shall have the right to visit with the child for purposes of celebrating the Christmas school holidays, beginning on Christmas Day, December 25, at 2:00 p.m. and continuing until New Year’s Day, January 1, at 2:00 p.m.  In each odd-numbered year secondary custodian shall have the right to visit with the minor child beginning at 6:00 p.m. on the day school recesses for such holiday and end on Christmas Day at 2:00 p.m.

While not federally recognized holidays, Mother’s Day and Father’s Day are both important days to take into consideration. Your schedule should include provisions for visitation on these days.

Father’s Day Weekend Visitation. Father shall have the right to visit with the minor child for the purpose of celebrating Father’s Day on Father’s Day weekend, whether or not this day falls within the normal visitation schedule set out for him under this Agreement.

Mother’s Day Weekend Visitation. Mother shall have the right to visit with the minor child for the purpose of celebrating Mother’s Day on Mother’s Day weekend, whether or not this day falls within the normal visitation schedule set out for her under this Agreement.

School vacation days:

Spring break is a popular time for families to travel, and some school districts also provide students with mid-winter breaks and autumn breaks. Your schedule should include terms for each of these school breaks.

Spring Vacation Visitation. Secondary custodian shall have custody of the minor child during the spring school vacation in each odd-numbered year and primary custodian shall have custody of the minor child in each even-numbered year.  Custodial time shall being when school recesses for such holiday and end at 6:00 p.m. on the day before school resumes.

Summer break:

Summer breaks are long and provide a great opportunity to spend quality time with kids. Summer visitation terms should address traveling with your child, extended stays, and be considerate of any summer programs your child may be enrolled in.

Your child’s birthday:

Child’s (Children’s) Birthday Visitation.  Secondary custodian shall have the right to visit with the minor children for the purpose of celebrating the children’s birthdays by celebrating them in any period that would fall within the normal visitation schedule as set forth above.  If the birthday does not fall within a period when secondary custodian would normally have the children, then secondary custodian shall have the right to visit with the children for the purpose of celebrating the children’s birthdays on any day within five days prior to or subsequent to the children’s birthdays, but not on the child’s birthday itself.  Secondary custodian shall give primary custodian at least two weeks’ notice of the day chosen to celebrate the children’s birthdays if the children’s birthdays do not fall within normal visitation schedules.  If the day chosen to celebrate the children’s birthdays is during the school week, secondary custodian shall have the children from the time school recesses on the day chosen until 8:00 p.m., unless the day chosen is a Friday in which event the children shall stay overnight with secondary custodian and return home the following morning by 8:00 a.m.  If the day secondary custodian has chosen falls on a weekend, he/she shall have the children from 8:00 a.m. to 8:00 p.m.  If there are siblings, secondary custodian shall have the choice of inviting the other children for the celebration of the birthday as well as the child whose birthday is being celebrated.

Your birthday:

Exceptions to the regular schedule are made for your birthday.

Father’s Birthday Visitation.  Father shall have the right to visit with the minor children for the purpose of celebrating the father’s birthday on the father’s birthday, whether or not this day falls within the normal visitation schedule set out for him under this Agreement.  If the birthday falls during the school week, father shall have the children from 5:00 p.m. to 8:00 p.m. If the birthday falls on a Saturday or Sunday, father shall have the children from 9:00 a.m. until 5:00 p.m. on that day.

Mother’s Birthday Visitation.  Mother shall have the right to visit with the minor children for the purpose of celebrating the mother’s birthday on the mother’s birthday, whether or not this day falls within the normal visitation schedule set out for her under this Agreement.  If the birthday falls during the school week, mother shall have the children from 5:00 p.m. to 8:00 p.m. If the birthday falls on a Saturday or Sunday, mother shall have the children from 9:00 a.m. until 5:00 p.m. on that day

Other vacation visitation:

Lastly, visitation schedules may include additional vacation time, with an amount based on what the parents agree to.

Other Vacation Visitation.  The children shall reside with secondary custodian for a period of not less than four (4) weeks during the year, of which at least two (2) weeks will be consecutive visitation.  The two weeks of consecutive visitation, unless it conflicts with present vacation plans with the children, shall be confirmed by secondary custodian to primary custodian by sixty (60) days’ notice prior to the enjoyment of such visitation.  During the four (4) weeks visitation provided for in this subsection, primary custodian shall have visitation privileges normally accorded to secondary custodian unless secondary custodian shall be out of the *hometown* area on trips not to cumulatively exceed three (3) weeks during any calendar year, with the children, in which event primary custodian shall have no visitation privileges.  If primary custodian shall take the children on trips outside the *hometown* area for periods not to cumulatively exceed three (3) weeks during any calendar year, secondary custodian under these circumstances, shall have no visitation privileges.

This provision may sound confusing, but it simply states that the secondary custodian shall have at least four weeks of vacation time with the child, and if the time is spent at home then the secondary custodian must give visitation rights to the primary custodian. However, if this vacation time involves trips outside of your local area then there are not visitation rights for the other parent since it is not feasible to arrange visitation while physically out of reach.

Custody Schedules, Traveling, and Different States

When forming a visitation agreement you may need to include provisions to accommodate your ex’s unique schedule if they travel often for work. Things become even more difficult if one parent permanently moves out of state.

Scheduling visitation if you travel frequently for work

Depending on the frequency of your travel, the visitation agreement can provide for X amount of overnight visits. You should set a date each month to confer with your ex about your travel schedule and set the overnight visitation dates.

Custody Schedule – Traveling parent.  Secondary custodian shall have a minimum of seven (7) overnight visits (with no more than 3 overnights being consecutive) with the child each month as follows:

-Secondary custodian will provide primary custodian with his/her work travel schedule on the 20th day of each month.

-The parties shall confer with one another regarding secondary custodian’s two groups of scheduled time off on the 20th day of each month.

-Primary custodian shall make all reasonable efforts to make the child available during secondary custodian’s scheduled time off, and shall make the child is available to secondary custodian during his/her scheduled time whenever possible considering primary custodian’s schedule and the schedule of the minor child.

-In the event the parties cannot agree on which nights secondary custodian will have the child, secondary custodian’s first choice of overnights shall prevail during the first group of days secondary custodian has off each months and primary custodian’s first choice shall prevail for the second group of days secondary custodian has off each month.

These stock terms allow for flexibility and communication, but also include a provision in the event an agreement cannot be reached. It is best to include this preemption clause so that you and your ex are not stuck at a standstill requiring the court to get involved if you cannot come to an agreement.

Moving out of state

Custody Schedule – Different States.  The primary custodian shall have primary physical custody of the minor child and the children shall reside with the primary custodian. Secondary custodian shall have secondary physical custody of the minor child with the following custodial periods during which secondary custodian must accompany the child during travel to and from [the state where the secondary custodian resides]:

Secondary custodian shall have the option of having one weekend each month with the minor child in the state that the child resides, if different than the home state of secondary custodian. Secondary custodian shall give at least fourteen (14) days prior written notice and such plans shall not conflict with either plans made in advance by primary custodian or with the child’s extra-curricular/educational/social activities.  Visitation would occur from Friday at 4:00 p.m. until Sunday at 6:00 p.m.

This schedule provides that the secondary custodian can have physical custody at their home in their state, as well as the option of visiting in the child’s state of residency once a month. Your out of state visitation agreement may look different based on several factors, including the distance between the states, whether visitation must be supervised, and your child’s educational schedule.

Violations of Visitation Orders

These schedules can seem complex, and perhaps you fail to honor the terms due to confusion or a sincere mistaken belief. Whatever the justification (or excuse), failing to adhere to the schedule agreed upon can cause serious issues and complications for you, your ex, and your kids.

Due to the weight judges put on stability and consistency in a child’s development, the courts may not respond compassionately if you “just forgot” to give your ex time to visit. If you violate the custody and visitation orders you may be charged a fine or worse, you could be found to be in contempt of court. Depending on the severity, you may face criminal penalties.

Failing to uphold the agreement is a serious problem, but if you feel your ex is the one in violation, bring your grievance to the court. Do not attempt to solve the problem yourself. Taking matters into your own hands could actually put you in violation of the court orders.

Supervised Visitation

Supervised visitation is when another adult must be present during the noncustodial parent’s visit with the child. This is usually required for the safety and well-being of the child, and in cases where a history of abuse, substance use, or other actions having a negative impact on the child exist. The supervisor can be a family member or an agency. If supervision is required it will be included in the court order. You may need to create a concrete visitation schedule to accommodate the supervisor, which could result in a less flexible options for visitation and less frequent visits.

Grandparent Visitation

Lastly, North Carolina allows grandparents to have visitation rights under certain circumstances. While this is rare, courts can grant visitation for grandparents as the court deems appropriate.

 

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