Visitation Rights of Parents in a Georgia Divorce

Visitation is generally considered a sub part of custody. O.C.G.A. section 19-9-22. See, Vines v. Vines, 292 Ga. 550, 551-52, 739 S.E.2d 374, 376 (2013). Accordingly, in an contest between divorcing parents over visitation, the court will look to what visitation schedule is in the children's best interests. Per McConaughey's Georgia Divorce, Alimony & Child Custody, 2012-2013 edition, "the trial judge has broad discretion in matters relating to custody, and the court may provide in great detail the conditions under which a parent may exercise visitation rights" (page 1196).

There is no set statutory visitation. If the parties cannot agree on a visitation schedule that is best for the children, then there is a contested issue. Almost everyone has a friend or family member with “standard” visitation – every Wed. night – every other weekend - two weeks in the summer, etc. But this is not required by any statute or case. When representing fathers, Atlanta Child Visitation Lawyer Russell Hippe always recommends and, if necessary, fights for more than "standard visitation" (for example week on / week off in the summer or a full summer split if the client is otherwise agreeable to be designated as the non-custodial).

Agreements and orders typically say that visitation shall be as the parties agree, but if the parties cannot agree, then certain minimum visitation and the day and time structure for this visitation will be mandated by court order.

If you and your spouse agree on visitation, this agreement can be set forth in a parenting plan and / or incorporated into the final settlement agreement. Mr. Hippe commonly lists all visitation details in the parenting plan (whether agreed or presented as a proposed temporary or final order) and incorporates the parenting plan into the settlement agreement by reference, if the parties reach a full settlement of the case (either uncontested or after the case is filed).

It is the express policy of Georgia to allow visitation rights to divorced parents who have demonstrated the ability to act in their minor children’s best interests. OCGA § 19–9–3(d). Therefore, only in exceptional circumstances should the non-custodial parent be denied access to a child. Shook v. Shook, 242 Ga. 55, 56(2), 247 S.E.2d 855 (1978). Generally, the interest of a child is best served by an award of visitation rights to a parent who is not morally unfit. Griffin v. Griffin, 226 Ga. 781, 784(3), 177 S.E.2d 696 (1970). Unless the contrary finding is demanded, a trial court’s determination of parental fitness is conclusive and will be affirmed on appeal. Hardy v. Hardee, 225 Ga. 585(2), 170 S.E.2d 417 (1969).

Woodruff v. Woodruff, 272 Ga. 485, 531 S.E.2d 714, 715 (2000).

Notwithstanding this presumption, as noted, the trial court has broad discretion to limit visitation, including restrictions to supervised visitation, if there is apparent risk to the child and if such a restriction is in the child's best interest. See, Vine, supra. Also, for example, if there is risk that a parent might take a child out of state and refuse to return a child voluntarily, a trial court can condition visitation on the posting of a bond. Or require that visitation is at the custodial parent's residence. It all turns on the factual circumstances of the divorce and what is in the child's best interest.

Per McConaughey's Georgia Divorce, Alimony & Child Custody, 2012-2013 edition, "a child 14 years of age or older can elect not to visit with the noncustodial parent, but the trial court has supervisory power over the election" (p. 1199), meaning that the non-custodial can still challenge the election as not being in the child's best interest.