Understanding Visitation Rights in Divorce or Separation Cases with Children

In this guide we are going to explain what the visitation regime is after a separation or divorce, who and how it is determined, what circumstances are used to set it, and other frequently asked questions about the visitation regime for minor children.

divorce brings with it complicated decisions, especially when there are common minor children involved. In these cases, the most relevant thing is to determine the type of custody that will be carried out after the parents break up, always ensuring the well-being of the minor.

In the event of separation or divorce , as well as in the case of de facto couples who decide to end their relationship , custody of the children may be:

  • Shared custody : attributed to both parents, with the father and mother making decisions on equal terms regarding the care of the children. In this case, the children will live for alternate periods with both parents.
  • Single-parent or exclusive custody : attributed to one of the parents, called the custodial parent (generally the mother ). In this case, a visitation regime will be established in favor of the other parent, a non-custodial parent .

What is the visitation regime?

The visitation regime includes two different figures:

  1. Visit : consists of the child’s stay with the non-custodial parent for a short period of time. Generally, this involves the child staying with the parent for one or two afternoons a week.
  2. Stay : consists of the child’s stay with the non-custodial parent for several days, and includes an overnight stay.
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Therefore, visitation is the right of the mother or father who does not have custody of their children to visit them, communicate with them and have them in their company .

In addition to being a right, it is an obligation of the non-custodial parent . Parents, whether or not they have custody of their children, are obliged to provide them with the attention, food, affection, education and other care implicit in parent-child relationships.

In the words of the Supreme Court, visitation is a right-duty for the non-custodial parent.

What is the purpose of the visitation regime?

The main objective of this visitation regime is that the children do not lose their relationship with the non-custodial parent and thus cover their emotional and educational needs.

It is about the children maintaining with the parent who does not have custody, as well as with their relatives (grandparents, uncles, cousins…), the same emotional ties that they had before the parents’ life together ceased.

Who determines the visitation regime?

The visiting regime can be determined in two ways :

  1. Mutual agreement . It will be the parents who establish the periods and manner of stay of the children with the non-custodial parent. The parents’ agreement is the most desirable way to establish the visitation regime, taking into account their possibilities and always for the benefit of the minor . In this case, it will be necessary to include in the regulatory agreement the agreement adopted by both parents for this purpose.
  2. By the Judge in the divorce decree . In the absence of agreement between the parents, it will be the Judge who determines the time, manner and place to exercise the right of visit, communication and stay with the children.
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What circumstances are taken into account to determine the visitation regime?

The following circumstances will be taken into account:

  • The personal, family and work conditions of both parents.
  • Their economic resources .
  • The age of the children . This criterion is of great importance. During preschool age and until adolescence, the duration of visits and stays should be longer. In this way, you participate more actively in the child’s development. From adolescence onwards, flexibility should prevail when determining the visitation regime, thus allowing the adolescent to participate in social activities (relationships with friends, sports activities, extracurricular activities, etc.).
  • The distance or travel conditions for visits and stays with the children . It is evident that when the non-custodial parent resides in another country or another city, determining the visitation regime is more complex.

In these cases, the ideal is that the visitation regime be determined by mutual agreement between the parents, weighing their circumstances and always prioritizing the interest of the minor .

As a general rule, geographical distance means that weekly visits and weekend stays are eliminated. This lack is compensated by the extension of the time spent with the non-custodial parent during the children’s vacation periods. However, the circumstances of each case will determine the visitation regime .

Who is obliged to move the children to one home or another?

According to jurisprudential doctrine, established in a Supreme Court ruling of May 26, 2014, the most desirable thing is to obtain the agreement of the parents , as long as it does not violate the interest of the minor.

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In the absence of agreement , the following circumstances may arise:

  1. Each parent will pick up the minor from the custodian parent’s home to exercise the right of visitation, and the custodian will return the minor to their home. This will be the normal or usual system.
  2. Subsidiarity, the parties or the judge may attribute the obligation of collection and return to one of the parents with the corresponding financial compensation, where appropriate and must be motivated in the separation or divorce ruling.

These two solutions are established without prejudice to extraordinary situations that involve long-distance travel, as we have previously explained.

Can the non-custodial parent’s visitation rights be restricted?

The Judge may limit or suspend the visitation regime if circumstances arise that make it advisable, or if the non-custodial parent seriously or repeatedly fails to comply with the duties imposed in the separation or divorce ruling.

Limitation of visitation

If the judge’s decision is to limit the visitation regime, he will establish a more restricted schedule that usually implies that the child does not spend the night with the parent.

Suspension of visitation by the judge

It is the doctrine of the Supreme Court, TS Sentence of November 26, 2015, that the judge or court, assessing the existing risks, may suspend the visitation regime of the minor when the parent is convicted of the crime of abuse of his or her spouse or partner, or of abuse of the minor or another of the children.

Do grandparents have visitation rights?

Yeah . The Judge, after hearing the parents and grandparents, who must give their consent, may determine the right of communication and visitation of the grandchildren with the grandparents , taking into account the interest of the minor.

The personal relationships of the minor with his grandparents, siblings or relatives and friends cannot be prevented without just cause.

In the event that the custodial parent objects to these visits by the grandparents, the judge will decide based on the concurrent circumstances.

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