Visitation Orders, Family Courts, and Fragile Families
| Published date | 01 June 2018 |
| Author | Maureen R. Waller,Allison Dwyer Emory |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1111/jomf.12480 |
M R. W Cornell University
A D E Rutgers, The State University of New Jersey∗
Visitation Orders, Family Courts, and Fragile
Families
Despite proposals to make parenting time a part
of all new child support orders, limited research
has examined why some unmarried are more
likely than others to establish legal visitation
agreements. This mixed-methods study draws on
qualitative data collected from unmarried moth-
ers and fathers living in New York (N=70) to
develop hypotheses about the contexts in which
parents set up visitation orders, which are then
tested in a large sample of unmarried parents
living apart (N=1,392). Both qualitative and
quantitative ndings show that disengagement,
cooperation, and conict in the coparenting
relationship postseparation inuence unmarried
parents’ decisions about whether to establish
a legal visitation agreement. The qualitative
data further illustrate how parents’ distrust of
the court system, preference for informal agree-
ments, and uncertainty about the custody of
nonmarital children inform their decisions. The
article concludes by considering approaches for
helping low-conict coparents set up visitation
agreements outside of family court.
About two in ve children in the United States
are born to unmarried parents, and the majority
of these parents are living apart within 5 years of
Department of Policy Analysis and Management, Cornell
University,257 Martha Van Rensselaer Hall, Ithaca, NY
14853 (waller@cornell.edu).
∗School of Social Work, Rutgers, The State Universityof
New Jersey,390 George Street, New Brunswick, NJ 08901.
Key Words: child support, coparenting, family law, father-
hood, fragile families, mixed methodology.
having a child together (McLanahan, 2009). As
more unmarried parents enter the family court
system after they separate, legal scholars and
professionals have called attention to the new
challenges faced by family courts in address-
ing their needs (Insabella, Williams, & Pruett,
2003). Experts observe that the legal institutions
designed to dissolve marriage are misaligned
with the realities of many unmarried parents who
lack the knowledge and nancial resources to
navigate the family court process (Huntington,
2015). Unmarried parents also have more com-
plex legal situations than divorcing couples, but
fewer of the legal protections associated with
marriage (Insabella et al., 2003). Moreover, they
are more economically disadvantaged than their
divorcing counterparts and often have different
relationship histories, including many families
who have never shared a household together
(McLanahan, 2009).
These misalignments could become even
more visible in the coming years as new policy
efforts aim to further increase the number of
unmarried parents establishing legal parenting
time (or visitation) agreements. For example,
Public Law 113-183 (2014) contained a sense of
congress provision that stated including parent-
ing time in all initial child support orders should
be an important goal. Other federal proposals
go further by requiring states to establish legal
access and visitation responsibilities in all initial
child support orders while providing increased
funding to integrate access and visitation ser-
vices into the core child support program.
About half of poor children are involved in the
child support program, more than almost any
income support program serving families in the
Journal of Marriage and Family 80 (June 2018): 653–670 653
DOI:10.1111/jomf.12480
654 Journal of Marriage and Family
United States, and many of these children live
in families that were formed outside of marriage
(Ofce of Child Support Enforcement [OCSE],
2016). Yet, the research base for understanding
how these new policy initiatives could interact
with the circumstances of lower income fragile
families remains extremely limited (Osborne
et al., 2014).
This study uses an innovative mixed-methods
approach to gain new insight into why some
unmarried parents are more likely than others
to establish legal visitation agreements after
they separate. The article begins by drawing
on qualitative data from individual and focus
group interviews we conducted with unmarried
mothers and fathers living in New York (N=70)
to develop hypotheses about the contexts in
which they are more likely to seek parenting
time orders postseparation. We then test these
hypotheses in a large sample of unmarried
parents in the Fragile Families study who were
living apart (N=1,392).
Qualitative ndings suggested that unmar-
ried parents were less likely to establish visi-
tation orders if they had disengaged from each
other or could cooperate as coparents, but were
more likely to set up visitation agreements if
they had more conict in their relationships.
These data further illustrated how parents’ dis-
trust of the court system, preference for informal
agreements, and uncertainty about the custody
of children born outside of marriage informed
their decisions. Findings from sequential logis-
tic regressions, which modeled the decision to
set up a visitation order for unmarried parents
with a child support order, similarly showed that
disengagement, cooperation, and conict con-
tributed signicantly to the predictive power of
these models. Taken together, we nd strong
evidence that the type of coparenting relation-
ship unmarried parents reported postseparation
is important for this decision process. The article
concludes by considering approaches for help-
ing low-conict parents set up visitation agree-
ments outside of the family court system.
B
When parents initiate a legal process of divorce,
they typically resolve issues around legal and
physical custody, child support, alimony, and the
division of property at the same time (Cancian,
Meyer, Brown, & Cook, 2014). As part of this
process, many parents also set up a visitation
agreement, also termed parenting time, which
species how they will share time with children.
Visitation orders are determined using the “best
interest of the child” standard and can be set
according to a schedule, allow for reasonable
visitation, require supervised visitation, or spec-
ify no visitation with the noncustodial parent
at all (Basics of Custody & Visitation Orders;
http://www.courts.ca.gov/17975.htm). A typical
visitation schedule for a school-aged child estab-
lished in family court might include visits with
the noncustodial parent every other weekend
and at least one dinner or overnight visit during
the week. Schedules often stipulate that children
alternate holidays with parents and may allow
for longer visits with the noncustodial parent in
the summer (Visitation; http://www.nycbar.org/
get-legal-help/article/family-law/child-custody-
and-parenting-plans/visitation/).
Parents who formalized their relationships
through marriage are able to resolve all of these
nancial and coparenting issues within the
same divorce proceeding, but the OCSE (2013)
has called attention to the fact that there is no
“systematic mechanism” to establish parenting
time agreements for parents who have never
been married to each other. Most states do not
allow child support and visitation cases to be
heard together, partly to prevent parents from
using nancial support and access to children as
bargaining tools (see Mnookin & Kornhauser,
1979). Legal scholars and advocates havefurther
argued that linking child support and visitation
could put custodial parents and children who
have experienced domestic violence at greater
risk by increasing opportunities for contact
with an abusive noncustodial parent (OCSE,
2013; Pearson, 2013). Because child support
and parenting time are distinct legal issues,
however, unmarried parents may be required
to take separate legal actions, attend different
courts, and pay additional ling fees to set up
both types of orders (OCSE, 2013; Pearson,
2015). About seven in 10 parents in the child
support program do not have visitation orders
(National Conference of State Legislatures,
2016), and it is generally believed that the
time, complexity, and expense of navigating the
family court system make it especially difcult
for unmarried, noncustodial parents to establish
these agreements (Pearson, 2013).
In addition to reducing the nancial and legal
burden on noncustodial parents, a major impetus
for proposing the integration of visitation into
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