Modification Frequently Asked Questions: Modifying Visitation

Can I modify my visitation so that the kids live mostly with me?Maybe. In instances in which the parties truly split 50/50 time with the kids, a modification of the visitation would be governed by the “best interest” standard. Therefore, if the court believed a modification of parenting time leading to the kids being with one parent more time than the other was in their best interest, the court could do so. However, in instances where one parent has been awarded primary residential status, meaning the kids live primarily with that parent, the standard to modify is generally what we attorneys call an “endangerment” standard. Statute indicates that you cannot change visitation in a manner that also changes custody unless the parties agree or the primary custodian’s retention of custody presents a physical or emotional danger to the children. This is a difficult burden of proof to meet, meaning courts will likely truly require a showing of harm to the children before just changing residential custody. One can also seek a change in visitation that changes residence if the custodial parent has stated that he or she intends to relocate with the children. In such instances, the “best interest standard” comes back into play.

When can my kids decide they don’t want to go for visitation?This is perhaps the most common question asked by people in relation to modifying visitation, or residential custody as their kids get older. People often call our office with the belief that kids get to decide at 12 or 13. Because of that belief, they will call asking things like, “Sally is 12 right now and hates to go to her dad’s. She can decide not to go, right?” or “My 13-year-old says she wants 50/50 visitation. The court will give me that even if her dad says no, right?” In reality, there is no specific age set forth in statute. In reality, when kids start reaching 14, and more likely 15 or 16, most judges will put a much greater weight on the child’s wishes in terms of visitation or residential custody. It is not uncommon as kids reach their middle to upper teenage years that they may want to spend more time with the other parent, or even change residence all together. Though the legal standards set forth in a prior answer still apply, most courts recognize that you can’t force a 16-year-old to be where he or she does not want to be. You can still get a 12-year-old to follow a visitation schedule. As kids get older, both parents should recognize that their wishes may be factored into any modification of visitation request.