Chapter Eleven Visitation

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Eleven VISITATION¹

A. Entitlement to Visitation

1. Noncustodial Parents Are Usually Entitled to Visitation because It Benefits Their Children

Ordinarily the noncustodial parent is entitled to visitation, and it is in the best interests of children to have regular, ongoing contact with the noncustodial parent. However, not all visitation is equally good for children. "A recent analysis which pooled information from sixty-three studies reached an identical conclusion: How often fathers see their children is less important than what fathers do when they are with their children.'" Richard A. Warshak, Social Science and Children's Best Interests in Relocation Cases: Burgess Revisited, 34 Fam. L. Q. 83, 93 (2000).

The research provides mixed results regarding the effect of contact with the nonresidential parent. For some children, contact with their noncustodial parent was associated with greater well-being, whereas, for others, it was associated with poorer adjustment or was not associated at all. Frequency of contact alone is not associated with positive effects for the child. Where low conflict exists between the parents, contact with the noncustodial father appears to have a positive impact on children. . . .
The nature of contact and the relationship appear to be more significant than the frequency of contact. In a study of residential arrangements, eighty-eight percent of the adolescents reported that they visited their nonresidential parents because they liked being with them. When noncustodial parents share a variety of activities, including the routine, everyday activities, with their children, the children's well-being is enhanced. The major implication of these findings is that, subsequent to divorce, children need the nonresidential parent to fulfill the customary parental roles of monitoring homework, attending school events, spending holidays together, making decisions, and disciplining them. Being a "vacation" parent may not be sufficient. Most nonresidential fathers are more likely to act as friendly companions rather than to assume these usual parental roles.
The greater the geographic distance between the child and the nonresidential parent, the less likely that the nonresidential parent can assume the traditional roles or participate in the ordinary activities of the child's life.

Marion Gindes, The Psychological Effects of Relocation for Children of Divorce, 15 Journal of the American Academy of Matrimonial Lawyers 119, 134-135 (1998).

Relationships between parents and among parents and their children inevitably change following divorce, particularly the relationships between noncustodial parents and their children.

Certainly, the relationship between a noncustodial parent and his or her children is vitally important and worthy of fostering an protecting. It must be recognized, however, that in all divorces, the parents relationship with their children, and particularly the relationships between [noncustodial] parents and their children, are changed substantially and permanently, whether the parents and children live in the same state or even the same town. Thus, the difficulty in maintaining the relationship between the noncustodial parent and the children is as much a function of the divorce itself as it is of the distance between the households. See In re Marriage of Littlefield, 940 P.2d [1362] at 1371 [(Wash. 1997)] ("[T]he practical result of a marriage dissolution is that parenting and family life will not be the same after dissolution. This is so even though a trial court may believe it is in the 'best interests of the child' to continue to live in the same family unit. A child cannot escape the reality that his or her family unit is no longer the same."); Tropea v. Tropea, 642 N.Y.S.2d [575] at 581, 665 N.E.2d [145] at 151 [(1996)] ("Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way. The relationship between the parents and the children is necessarily different after a divorce and, accordingly, it may be unrealistic in some cases to try to preserve the [noncustodial] parent's accustomed close involvement in the children's everyday life at the expense of the custodial parent's efforts to start a new life or to form a new family unit."); D'Onofrio [v. D'Onofrio], 365 A.2d [27] at 29 [(N.J. Super. Ct. Ch. Div. 1979)] ("Even the best of circumstances and where the custodial parent is supportive of a continuing relationship between the child and the noncustodial parent, the nature of the parental relationship sustainable by way of visitation is necessarily and inevitably of a different character than that which is possible where the parents and the children reside together as a single-family unit.").

Rice v. Rice, 335 S.C. 449, 461-462, 517 S.E.2d 220, 226-227 (Ct. App. 1999).

Since mothers are more often awarded custody, it is the father-child bond that is severely, often irreparably, damaged in disrupted families.

Even for fathers who maintain regular contact, the pattern of father-child relationships changes. The sociologists, Andrew Cherlin and Frank Furstenburg, who have studied broken families, write that the fathers behave more like other relatives than parents. Rather than helping with homework or carrying out a project with their children, nonresidential fathers are likely to take the kids shopping, to the movies, or out to dinner. Instead of providing steady advice and guidance, divorced fathers become treat dads'.

Barbara DaFoe Whitehead, Dan Quayle was Right, Atlantic Monthly 47, 65 (April 3, 1993).

The term ["visits"] reflects the reality that, for many children, divorce transforms the father-child relationship into something less than a normal parent-child relationship. As his children become guests, the father becomes a host who entertains his guests. So many divorced fathers fall into this pattern that the phrase, "Disneyland Dad," is commonly used to describe the altered relationship.

Richard A. Warshak, Social Science and Children's Best Interests in Relocation Cases: Burgess Revisited, 34 Fam. L. Q. 83, 93 (2000).

In light of the findings of social scientists that are set out above, courts should encourage parents to continue sharing parenting responsibilities after divorce to the extent that it is practical and to the extent that the parents can accomplish this in a cooperative, non-hostile environment.

The privilege of visitation, and its determination, is within the broad discretion of the trial court. The visitation must be organized in the best interest of the child. These principles are stated most succinctly in McGregor v. McGregor, 255 S.C. 179, 177 S.E.2d 599 (1970):

Where the custody of a minor child is awarded to one parent by a divorce decree, it is the prevailing practice to insert in the decree a provision granting visitation rights to the parent who does not have custody. Of course, a court, in granting the custody of a minor child to one parent, has the power to deny visitation rights to the other parent when the circumstances justify such, and the rights of visitation should not be denied unless the court is convinced that such are detrimental to the best interest of the child. The estrangement of child and parent should be avoided whenever possible. In determining whether the parent who does not have custody should be given visitation rights, the welfare and best interest of the child are the primary considerations. Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 [1969].
The general rule is that minor children, notwithstanding the divorce, are entitled to the love and companionship of both parents, and the well rounded development of a normal child demands an association with both parents. The decree, within the discretion of the court, may and, under normal circumstances, should include a provision permitting the parent deprived of their custody to visit or communicate with the children under such restrictions as the circumstances may warrant. 27B C.J.S. Divorce § 312, at page 478.
The question of determining and limiting visitation rights is one addressed to the broad discretion of the trial judge and in the absence of a clear abuse of such, the order granting, denying or limiting visitation rights will not be disturbed. Graham v. Graham, 253 S.C. 486, 171 S.E.2d 704 [1970]. However, a judicial award of the custody of a child and the fixing of visitation rights is not final and changed circumstances may authorize the change of custody or visitation rights in the future. Porter v. Porter, 246 S.C. 332, 143 S.E.2d 619 [1965].

McGregor at 182-183, 177 S.E.2d at 600-601. The language from McGregor was quoted with approval in King v. Gardner, 274 S.C. 493, 265 S.E.2d 260 (1980).

Appellate courts have consistently held there is no relationship between visitation rights and child support payments. "A custodial parent cannot withhold visitation because of a [noncustodial] parent's failure to make child support payments." Garris v. McDuffie, 288 S.C. 637, 643 n.1, 344 S.E.2d 186, 190 n.1 (Ct. App. 1986). The Court of Appeals reversed the trial court's ruling that the issue of the mother's contempt had become moot when the parents reached an agreement about future visitation. The mother indicated she had been reluctant to cash support checks because she thought she might have to allow the father to resume visitation if she did. See also Anderson v. Anderson, 282 S.C. 162, 318 S.E.2d 566 (1984) (reversing an order conditioning the father's obligation to make child support payments on continued visitation by the children).

Even if the custodial parent improperly prevents visitation, the noncustodial parent must continue making child support payments. In Garris v. Cook, 278 S.C. 622, 300 S.E.2d 483 (1983), the trial judge held that it would be inequitable to make the father pay arrearages since he could not restore his lost visitation. The father had stopped making support payments because the...