Today I met with a person who asked me a question I hear almost daily, “How can the court do that?” This episode involves this common scenario:
- Parents have never been married and the child was born out of wedlock.
- Custodial parent goes to DHR to establish child support.
- Non-custodial parent shows up to court expecting the judge to enter a child support AND visitation schedule.
- Judge does not even entertain establishing visitation and non-custodial parent leaves court baffled and heartbroken.
So, how can the court do that? The answer to this questions is quite simple and follows in many areas of family law: You can’t get what you do not ask for.
Child support and custody/visitation are two completely different animals that are not always intermingled. One does not have to be in place for the other to occur. For example, a custodial parent cannot withhold visitation from the non-custodial parent just because the non-custodial parent may be behind on child support. On the flip side, visitation is not a pay-to-play situation. Just because you pay child support does not mean that you are entitled to visitation. In order for visitation to be established, you have to ask for it to be established. In other words, the court must obtain jurisdiction over the subject-matter.
How to Establish Visitation.
There are two primary ways to establish visitation: Either you can counterclaim in the case attempting establish child support or through a new petition to establish visitation. Most times, people seeking to establish visitation come to see me after the initial child support obligation is entered. Thus, it is sometimes easier to file a new petition asking the court to establish visitation after the initial child support order is entered. Everything is filed under the same case number as the child support case and assigned a new point number. Once the other party has been served, he or she will need to file an answer within the appropriate time frame. Depending on a case-by-case basis, a motion for pendente lite may be appropriate. Before you know it, you will have a court-established visitation schedule.
Because cases involving visitation establishment can be complex, it is best to seek the advice of an attorney to help you through the process. An experienced family law attorney will help you through the process and will assist in ensuring that you have the best chance at a positive outcome.