Visitation Rights and Expectations
Updated: Jul 23, 2021
As with custody issues, if your expectations are in line with reality concerning visitation, then you should not have any reason to get in a legal battle with your co-parent. Unfortunately, visitation, especially when an infant is concerned, is often an emotional issue that can be very hard, especially for mothers. For a good reason! Mothers carried the little person in their belly for nine months. Guys, make sure to cut mom some slack if she has a hard time letting her newborn out of her sight.
As hard as it is, most new mothers understand that dad will sooner or later have unsupervised overnight visits at his home on a regular basis. But they are not sure at what age the courts will grant these visits. Moms instinctually want to protect their young and are often unwilling to even let them out of their sight. In many cases, they might be right to worry if the father has no history with children or no support network to help, such as the child’s grandparents. Furthermore, if Mom is nursing, it can be a challenge to pump milk for the father to use during his visits, and shouldn’t that count for something? Won’t the court understand that it’s just too soon for visits away from Mom?
On the other hand, fathers sometimes lash out and demand immediate private visitation as if they are not doing their fatherly duty if they don’t have “alone time” visits from day one. They tend to want to spend time with their child on their turf, unsupervised by a mother and perhaps other maternal family members with who they may not get along with.
But, deep down, fathers know (or will soon learn) the truth: the first few months of an infant’s life consist of nursing, pooping, and sleeping around the clock, so there is not really much reason to insist on overnight private visits at first. Yes, you want the newborn to learn your look, voice, smell, etc. However, you just don’t need overnight or even private visits to achieve this during the first year. I know from experience that short but frequent visits will do the job. But still, how long will the court make you wait before you have some private time? She’s your baby too, right?
Even though everyone agrees a time will come when Dad gets unsupervised, overnight visits, the two co-parents often cannot agree on when exactly this will happen.
Again, correctly managing your expectations will be the difference between an expensive court battle and a seamless transition. The first component to consider is simply the child's age. A newborn baby will not have unsupervised or overnight visits with their father in the first few months unless the mother wants it to happen. After all, it will take you several months after the birth to get your first court hearing, so the earliest a father could even think about forcing the issue is somewhere around six months but probably closer to twelve months old.
At six months, infants can begin to sample solid foods. Although they will still rely heavily on breast milk or formula for nourishment, the argument that they must remain with mother to nurse doesn’t hold much water after six months of age. At least that’s what Jess’s attorney advised her the Pennsylvania judges would say, and it's what my attorney believed would hold true in Maryland. My daughter’s mother disagreed wholeheartedly; she felt that our child had to remain close by for years to continue nursing around the clock.
My daughter’s mother was also deeply concerned about something known as “stranger anxiety.” This is a clinical term used to describe how infants typically get nervous and cry around unfamiliar people. It does indeed happen, and it is a “real thing.” According to attachment parenting principles, stranger anxiety should be avoided at all costs because the theory preaches the worst thing you can do is let an infant cry.
However, according to most parents who have ever left a child with a babysitter or a grandparent for a few hours, stranger anxiety is nothing to worry about at all. The child will get used to the person and stop crying in short order, guar-an-teed. If you are really worried about it, the best cure for stranger anxiety is to introduce the new person slowly in small doses, working up to longer exposures. It may take a few visits, but the child will be perfectly fine with the newcomer sooner or later. In the meantime, you can be sure there is no lasting damage done from crying a bit while you are away.
We don’t mean to sound cold-hearted, but every infant cries at times, and it is perfectly natural. After all, they can’t talk! Crying is their only way to communicate, and you shouldn’t ignore it. Of course, you must check to see their diaper is dry, their belly is full, a clothing tag is not irritating them, etc. But, you don’t need to worry they will harm themselves by crying. There are books like one of our favorites, Eat, Sleep, Poop, that devote chapters to this sort of thing.
Our point is not how to best care for an infant. Our point is to make sure you understand that the courts are not likely to take “stranger anxiety” as an excuse to withhold unsupervised visits. The cure for stranger anxiety is more time alone with the stranger, not less.
Most parents and most courts believe that there is no real reason a child cannot spend alone time, even overnight, away from its mother after six to nine months old. This includes nursing babies.
The exception would be if the child has not seen the father very often, then Mom can make the case that a short “phase-in” period should be observed to mitigate the stranger anxiety before the first extended overnight visits. No one wants to drop a baby off with someone the baby doesn’t know at all. If dad is smart, he should want to start with short visits and work up to longer ones. It will be easier for him as well as the child. Generally, the court will “phase-in” the father’s alone time if the child doesn’t know him already by ruling that the mother supervises the first three or four visits so that child can get used to dad while mom is still nearby.
Going weeks or months without seeing your child is a common mistake that fathers sometimes make during custody battles, although sometimes it is out of their control if the mother will not allow them to visit. Jessica’s son’s father made this mistake during their custody battle. Although Jessica was willing to allow supervised visits from day one, her co-parent was wrapped up in the legal fight and felt unwelcome at Jessica’s home to boot. He was not willing to visit his son on Jessica’s terms, and as a result, almost a year went by without seeing his child while the custody battle dragged on. Because he had not seen his son at all during that first year, Dad had to agree to a phasing-in period of four short, supervised visits before longer, unsupervised visits began. If Dad had an actual family law attorney (instead of a friend who didn’t practice family law), he probably would have been advised to handle this differently.
My attorney made it clear to me from day one that the best thing I could do, both as a parent and as a litigant asking the court to grant visitation rights, was to make sure I saw my child as often as possible on whatever terms her mother would allow. My daughter’s mother was happy to have me visit as often as I liked, but only in her home while she was nearby. I followed my attorney’s advice, and for every single weekend from birth till age one, I visited my daughter in her hometown. I did not have any unsupervised time until the courts required it about halfway through the battle, but these were just a few hours at a time and not yet overnight visits. In another blog post we will spell out the timeline you should expect in a custody battle.
Overnight visitation was one of the main issues that had me locked in litigation after my daughter was born. During the pregnancy and after the birth, Mom made it clear that she would not allow overnight visits in my home until our daughter was four or five years old. As the custody battle raged on, she lowered her age demand to two or three years old, but that was still too long for me. My attorney assured me the courts would rule there was no reason to wait past age one year, which coincided with our trial date.
My daughter’s mother had gone all-in on the attachment parenting beliefs, and she was scared to death that any separation from mother would traumatize our child. “Traumatizing” is a word she often used to describe what she thought visits with me would be like for our daughter. I believe she had been feeling some sort of attachment parenting guilt, which I believe is common with new mothers who subscribe to attachment parenting. They want to be the “best mother ever,” and everything outside of their control becomes a threat to that impossible ideal.
It seemed to me that Mom felt she had to protect our daughter from visits with me because she feared it might do mental or physical damage or somehow weaken their mother-child bond. Of course, I disagreed, and I wanted to start making my own bonds with my daughter. But more importantly, the courts disagree, and because Mom was unwilling to align her expectations about visitation with reality, we began a long and expensive court battle.
Our custody battle took almost a year to play out, which is typical. In the end, we settled without a trial, but part of our settlement was that I had to agree to an additional twelve-month phase-in period. Meaning, I had to slowly phase-in regular weekend overnight visits for another twelve months even though I had spent the previous twelve months visiting her every single weekend. Why would I agree to such a thing if my attorney told me the courts would grant immediate overnight visits? We will save that explanation for future blog posts.
-Jessica & Jim
Jim and Jessica Braz are not lawyers. While they have real-life experience in the issues discussed here, they do not give legal advice on this website. Furthermore, child custody laws, child support calculations, and family law, in general, vary from state to state. Be sure to consult an attorney in the appropriate state for your custody litigation.
Jim and Jessica Braz are not doctors. While they have real-life experience in the issues discussed here, they do not give medical advice on this website. Be sure to consult your doctor on your specific medical situation.
Jim and Jessica Braz are not licensed therapists, mediators, or counselors. While they have real-life experience in the issues discussed here, you should consult licensed professionals as needed.
The advice given on this website does not hold Jim and Jessica Braz legally liable for any adverse outcomes you may have from following their advice.
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