Also known as: access orders · visitation order
Written by attorneys — see sources below.
A court order that grants a noncustodial parent or other party visitation or contact rights with a child. Modification of such an order is permitted on the parties' agreement unless the court determines that the agreement would not serve the child's best interests.
Anthony Arnold and Anita Ali had obtained an access order allowing Anita weekly visits with the child after Anthony received primary custody. The parties later agreed to reduce the visits to every other week because of the child's school schedule. The court approved the change without further inquiry because nothing indicated that the new arrangement would harm the child.
Arthur Abrams obtained an access order in Chile that entitled him to regular visits with his child. When the custodial parent planned to move abroad, Arthur invoked the order to prevent the relocation without his consent. The court treated the access order as enforceable and required the parent to honor the visitation schedule.
Timothy Abbott, a British citizen, and Jacquelyn Abbott, a United States citizen, married in England in 1992. Their son A. J. A. was born in Hawaii in 1995 after the couple moved there for Mr. Abbott’s astronomy work. The family relocated to La Serena, Chile, in 2002, where marital discord led to separation in March 2003. Chilean courts granted the mother daily care and control of A. J. A. while awarding the father direct and regular visitation rights, including every other weekend and the full month of February each year. Under Minors Law 16,618, article 49, Chilean law conferred a ne exeat right on the father requiring his authorization before the child could leave the country. The mother obtained a ne exeat order from the Chilean family court prohibiting removal of the boy. In August 2005, while proceedings remained pending before the Chilean court, the mother removed A. J. A. from Chile to Texas without permission from the father or the court. A private investigator later located the mother and child in Texas. The mother filed for divorce in Texas state court in February 2006, seeking modification of the father’s rights including sole authority over the child’s residence. Mr. Abbott filed an action in Texas state court requesting visitation and an order to show cause why the child should not return to Chile. The state court denied return but granted liberal visitation periods in Texas during February 2006. In May 2006, Mr. Abbott filed suit in the United States District Court for the Western District of Texas under the Hague Convention and the International Child Abduction Remedies Act seeking the child’s return to Chile. After a bench trial at which only Mr. Abbott testified, the District Court denied relief in July 2007. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The Supreme Court granted certiorari to resolve a conflict among the circuits on the status of ne exeat rights.
View caseAudrey Ashton, a fit parent, objected to an access order that would have given her child's grandparents unsupervised overnight visits. The court had granted the order solely because it believed more contact served the child's best interests. On appeal the order was reversed because the statute failed to give special weight to the fit parent's decision.
Tommie Granville and Brad Troxel never married but had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad's parents and the paternal grandparents of the children. After Granville and Brad separated in 1991, Brad lived with his parents and regularly brought Isabelle and Natalie to their home for weekend visitation. Brad Troxel committed suicide in May 1993. The Troxels continued to see the children on a regular basis after his death. In October 1993 Granville informed the Troxels that she wished to limit their visitation to one short visit per month. In December 1993 the Troxels filed a petition in Washington Superior Court for Skagit County under Rev. Code Wash. § 26.10.160(3) seeking visitation rights. The statute provides that any person may petition the court for visitation rights at any time. The court may order visitation when it may serve the best interest of the child whether or not there has been any change of circumstances. The Troxels requested two weekends of overnight visitation per month and two weeks each summer. Granville proposed one day of visitation per month with no overnight stay. In 1995 the Superior Court ordered visitation one weekend per month, one week during the summer, and four hours on both grandparents' birthdays. Granville appealed. The Washington Court of Appeals reversed on the ground that nonparents lack standing to seek visitation under the statute unless a custody action is pending. The Washington Supreme Court granted review, held that the Troxels had standing, but affirmed on the ground that the statute unconstitutionally infringes on the fundamental right of parents to rear their children. The United States Supreme Court granted certiorari and affirmed the judgment.
View caseA court may modify a final access order on a showing by a preponderance of the evidence that a substantial and continuing change in circumstances has occurred and that modification serves the child's best interests. On the parties' agreement the court may also modify the order unless it finds the agreement contrary to the child's best interests.
Supporting sources
Yes. The Due Process Clause protects a fit parent's fundamental right to direct the upbringing of the child, including decisions about third-party visitation. A statute or order that permits visitation based solely on a judge's independent best-interests determination, without according special weight to the fit parent's choice, is unconstitutional.
Supporting sources
A nonparent seeking to convert an access order into a custody order must rebut the statutory presumption that favors parental custody. The nonparent must prove by a preponderance of the evidence both a substantial and continuing change in circumstances and that the requested custody arrangement serves the child's best interests.
Supporting sources
…with the child. It contains no requirement that the parent be shown to be unfit. It contains no requirement that the visitation order be limited in duration or that it be subject to any particular conditions. The statute thus permits a court to order visitation by any person at any time, so long as the judge believes that…