Services: Domestic Violence: Resource Manual - Visitation (Section 7)

1. What is visitation?

Visitation is the time the parent who does not have physical custody (the "noncustodial 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 or overnight). If the child ends up being with each parent about half the time, it is joint physical custody and not visitation.

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 is the "adjudicated" father of your children) and he requests visitation in court, he will usually be granted visitation so long as it is in the children's best interest (ordinarily, unless a parent presents a danger to the children, it is presumed that it is in their best interest for children to see and know both parents).

If we were married?

• If there is no court order regarding custody, parents have joint legal and shared physical custody and their time spent with the children is not considered 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 both have equal rights to legal and physical custody. If and when you go to court, a decision would be made about custody and visitation that would be put in a court order or decree.

If we were not married?

• Just because you were not married does not mean he cannot visit the children - what is important is whether he is considered your children's father in the "eyes of the law." If you separate from your boyfriend, he will not be granted visitation by a court unless he either admits paternity, or is found to be the father (adjudicated), or you and he sign an Affidavit of Paternity.

If he is not the biological father?

• Stepfathers ordinarily do not 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 money for the children?

In Nevada, visitation and child support are not linked. Just because someone is not paying child support does not mean they lose the right to visit their children - just as it is not automatic that someone can see their children simply because they are paying support for them. A judge will grant or deny visitation based upon whether such visits are in the children's best interest.

4. Can visitation be limited?

The judge may limit visitation if you persuade him/her that it is in the children’s best interest (because of drug use, physical violence, or excessive drinking by the other parent, for example). You must be prepared however to show the judge the seriousness of these problems and why the children would be at risk. The burden of proving your claim is on you.

5. How can the judge limit or restrict visitation?

* One way the judge can restrict visitation is by ordering that all visits or exchanges of children be "supervised." Right now, Las Vegas has only one visitation and exchange center monitored by the Family Court, located at 2595 South Torrey Pines Road, Las Vegas, Nevada. This facility is called "Donna’s House", named after a former court employee who was killed by her abuser. Donna’s House has limited hours of operation for supervised visitation and exchanges; the judge must sign an order directing that Donna’s House provide the supervised visit or supervised exchanges.

Even if you cannot persuade the judge to allow you to use Donna’s House for visits or exchanges, you can ask friends, relatives or members of your religious community to supervise your children’s visits with their father. In addition to having facts that demonstrate the danger your abuser presents to you or your children, you should be prepared to suggest a willing and able supervisor to the judge if you want him or her to order supervised visits or exchanges.

• Visitation can be restricted by the amount of time your child spends with your abuser (for example, no overnight visits).
• Visitation can be limited to a specific place (for example, the shopping mall, 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 or batterers’ intervention program classes."
  • "Mother cannot have the child around a certain person."

You may ask the judge to include restrictions in the visitation order if you feel it is necessary for your safety or the safety of your children. 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 emotional 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 the child’s therapist could explain to the court the harm of unlimited contact.

7. Can there be no visitation at all?

Unless the father presents a credible danger to the children, judges do not like to 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 always easy to do. The following are court procedures under which a court can order visitation:

• Complaints for Divorce, Legal Separation, Custody, Visitation or Paternity filed in Family Court, can have a Motion for Temporary Visitation filed with them, asking for an order setting out a visitation schedule.
• Protection Orders Against Domestic Violence can include visitation orders.

9. If I want to do the case myself, is there anybody who can help me?

Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Divorce, Paternity and Custody law. The classes are taught by law students, with a supervising attorney available to answer questions regarding do-it-yourself divorce or custody/paternity/child support cases. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester. Many domestic violence shelters have advocates who understand the basic procedures involved in getting a divorce or paternity/custody/child support case, to get you started. Also, see the Checklists at the Appendices to Sections 9 and 10, including How To Prepare For A Court Hearing.

10. I don’t think I can do it myself, but I can’t afford an attorney. How can I get someone to help me?

Many attorneys in Clark County offer what are called "unbundled services." This means that you may hire the attorney for limited assistance only (such as, to appear with you at a hearing or to review your documents) and he/she agrees to charge you only for that limited service. This can allow you to control the amount you pay in legal fees, while getting you the expert assistance you need to proceed with the case largely on your own.

If your case qualifies, Clark County Legal Services may be able to represent you directly, or refer your case out to a volunteer attorney (the Pro Bono Project). The Pro Bono Project finds volunteer attorneys from the community to represent low income residents of Clark County in meritorious cases, free of charge. You must attend the free legal information classes referred to in question 9 above, to qualify to apply for consideration by the Pro Bono Project. You will be provided with an intake form at the class that you must complete; you will be contacted by the Pro Bono Project soon thereafter.

11. We are in court because the District Attorney (DA) has brought a child support case. Do I have to let him visit my children?

If you request the DA’s assistance in collecting child support or if you receive Temporary Aid to Needy Families (TANF, formerly called welfare), the DA can bring your abuser to court to try to establish a child support order. The DA will not establish orders for visitation or custody: they deal only with child support. If there are abuse issues, you should tell the DA as soon as you are contacted and remind them again every time you go to court. If your abuser wants to asks a judge for visits or custody - which, if the Family Support judge finds him to be the father, he now has a right to do - he has to file his own Complaint for Custody and Visitation and persuade the judge in that case to order it. That means you will have time to present you argument explaining why visits are a bad idea. (See Section 8 of this manual on child support and Section 9 of this manual on paternity. See also Questions 8 and 9 in Section 2 about "good cause" for DAFS to not request child support from your abuser for safety reasons.)

12. Can there be an investigation?

When parents don’t agree on visitation, the judge will order both parents to attend mediation through the Family Mediation Service. The mediator will attempt to get both of you to agree upon a visitation schedule. You do not have to accept the mediator’s recommendations and you should not feel intimidated or coerced into a visitation schedule that puts you or your children at risk.

If you think there needs to be an investigation about visitation by a neutral third party, you can ask the judge to appoint a "Court-Appointed Special Advocate " (CASA) to look into the matter, or to have someone from Family & Youth Services (FYS) interview your children, or to appoint a child custody evaluator (outsourced through the Family Mediation Service. In order for the CASA volunteer or the FYS staff member to be able to make a full report, he or she should talk to various people who are involved with your child, as well as your child. You should cooperate with them and give the names and telephone numbers of people who are familiar with all of you. They will report to the judge with recommendations about where the child should live. Be aware that the CASA volunteer or FYS staff worker could disagree with your position and recommend something you do not want to the judge and therefore you should think about the strength of your case before asking for their involvement. Judges do not always go by their recommendations, but they usually weigh it heavily. You should think about people who can give the court information about the danger your abuser presents to your children. Friends, neighbors, relatives, and other people who have watched him interact with the children might be able to give useful testimony. They can be "subpoenaed" or ordered to appear in court to testify before the judge in a hearing to set a visitation schedule.

13. What if I have a protection order against domestic violence?

If you get a protection order against domestic violence (see Section 5 of this manual), the issue of visitation may come up at those hearings if your abuser asks to see the children. Be sure to tell the judge what you want and why. For example, you can tell the judge you want the children to be dropped off by a friend or relative because you are afraid to see your abuser. If your abuser has not been "adjudicated" (legally determined) the father, let the judge know at the hearing. Only a person that the law recognizes as a father should get visitation rights. If your abuser does not go to the hearing to extend your protection order, or if no provisions are made for visitation at that time, he may later bring a Complaint for Custody and/or Visitation in Family Court. (See Question 8 for more information on motions for visitation.)

14. He starts a fight whenever he picks up the children or brings them back. What can I do?

If the other parent uses drop-off and pick-up time to abuse or harass you, there are things you can do. 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). You may ask the court to order that visitation exchanges take place at Donna’s House, the court-supervised visitation center, with each parent using a separate door to come and go, at staggered times, so they never have to see each other. Some people use public places, like fast food restaurants or a shopping mall, or even a local police substation, as exchange points.

15. 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 consider going back to court and having the visitation schedule changed. You would do this by a Motion to Modify Visitation. (See Questions 15 and 16) or, if the schedule was set in the Protection Order, by a Motion to Modify your Protection Order. You can also file an Affidavit for an Order to Show Cause why he should not be held in Contempt for failing to follow the court’s order (although this should not be used simply because the father fails to visit - the court cannot force a father to visit his children). Contempt should be used when there is a problem that presents a danger to the children, for example he is drinking around your child against the court’s specific order. The judge may become frustrated with you if you file for contempt on minor matters (for example he is ten minutes late for a pick-up).

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

You should take this very seriously and make sure you go to court on the day listed on the Order to Show Cause. If you haven't done what he claims in his Affidavit, you can tell this to the judge. If you have witnesses, you can bring them to court. If you have documents, you can bring them (for example, if the children were sick on a scheduled visit and the doctor ordered bed rest - you could show the judge the doctor's note from the day you took the children in for treatment). You do not have to wait until the hearing date to explain your side of things; you can file a Response or Opposition before the hearing saying why you should not be found in contempt of the court order. The Self-Help Center at Family Court sells packets (for $3.00) that contain fill-in-the-blank form Oppositions, with instructions on how to file the Opposition and Serve it on the other parent (basically, the original copy of the Opposition goes into the court file for the judge to read and a copy is sent to the children's father, with a Certificate of Mailing filed with the court to show service). You still have to go to court the day of the hearing, too.

If you have done what he says (for example, not let him see the kids), you had better be prepared to explain to the judge your reason for acting as you have. Be prepared for the judge to be very concerned with your actions. If there is no emergency, judges prefer that you file a Motion to Modify Visitation to change the visitation order before taking matters into your own hands. They don't want court orders disobeyed. Be polite to the judge. Acknowledge that you understand a court order needs to be obeyed and explain the emergency behind your decision. The judge will hear both sides and make a decision. One of the things he/she might order is that missed visits be made up. Contempt hearings are very serious. A Family Court judge can send someone to jail for contempt. (Note also that neither party at a contempt hearing is entitled to have a lawyer appointed for them by the court.)

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?

See the discussion above. At the hearing, you can tell the judge he gave you permission. If you have witnesses to that permission, you can bring them to court for the hearing. In the future, you should get his permission in writing (at least, write down your understanding of the agreement, make a copy, date it and send it to him), before making the children unavailable on a day that the court has ordered visitation for him.

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

You will need to file a Motion to Modify Visitation showing a "substantial and material change in circumstances" since the court order or decree. The court wants to know what is different since the last time you were in court. If there is an emergency and you fear for your children’s safety, you can apply for a protection order on their behalf (see Section 3 of this manual for more information on protection orders) and request that he have no contact with your children. If you already have a protection order and want to change the visitation rights in it, you can file a motion to modify the protection order - the Family Violence Intervention Office (at Family Court) has the form you need to complete in order to do this.

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

Under Nevada law, parents generally have the right to determine what is in the best interest of their children and whom the children can and cannot see.

However, his parents have the right to ask the court for reasonable visitation rights. They will be granted visitation if it is in your child's best interest. If visitation with his parents would not be in your children's best interest, explain to the judge why that is. You have the right to make his parents go to court to get court permission if you do not want them to see your child. If you were not married and his paternity was not adjudicated (or you did not sign an Affidavit of Paternity with him), his parents do not have rights to visitation and 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 (to have his paternity adjudicated or acknowledged); they can go to court and ask for visitation and if it is in your child's best interest, it may be granted.

20. He is refusing to visit our children and they are getting upset with me. What can I do?

Unfortunately, there is nothing you can do in court to force him to see or spend time with his children. However, if he is not exercising his visitation rights and it is disrupting your schedule or the children's schedule, you can ask the court to modify the visitation. (See question 16 for more information on modifying visitation.) However, even if he has not be coming for his visits, you should not just decide on your own to take the children elsewhere during a scheduled visitation period - you should go back to court to modify the visitation order. If you do not modify the order and he decides to show up and finds you have taken the children somewhere else, he can ask the court to find you in contempt for violating his visitation rights.

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

Unless she poses a safety risk to your children, there is not much you can do. If she puts the children at risk, you can ask the judge to order that your children should not be around her. If your abuser does not visit the children, but instead leaves the children alone with his girlfriend, you could ask to reduce his visitation rights. However, if she is simply around during the visits, the judge will not forbid it. Visitation is his time to be with the children. If he has another relationship, it is his choice to allow his children to get to know his new partner.

Proceed to Section 8: Child Support >