This is an important case related to visitation schedules for non-custodial parents. The most important issues in a divorce case that involves a family are child custody, child support and visitation. In fact, a majority of divorce cases are appealed related to these three issues than any other.
It is very important that as a parent your visitation rights are clearly
defined in a divorce decree or in a Settlement Agreement of the Parties.
I always encourage parents to seek legal counsel before signing a divorce
agreement when child custody and visitation language is an issue. Once
a divorce agreement has been reached as to custody and visitation, it
is generally harder and more expensive to modify the terms later. Therefore,
it is important to get it right the first time.
This case originated in Talladega County, Alabama, as Barrett v. Barrett. The parties were married in 2005. In 2012, the wife filed a complaint for divorce. The wife filed a temporary petition asserting that the husband was living in a drug-rehabilitation facility. She further asked the court for primary custody of the child and exclusive possession of the marital residence. That petition was granted.
The husband filed a counterclaim in May 2012. The court awarded the husband supervised visitation of the child. The husband filed a motion for contempt asking the court to hold the wife in contempt of court. The husband claimed that the wife had refused to allow him to visit with the child.
The court in the Final Judgment of Divorce awarded the wife sole physical custody of the child, awarded joint legal custody, ordered the husband to pay child support, and ordered supervised visitation for the husband. The visitation schedule was to remain supervised for six months. After the six months, “should there not be any major issues” it would revert to standard visitation.
The wife appealed the judgment of joint legal custody and child support.
The appellate court upheld the judgment as to joint legal custody and
child support. However, the court reversed the trial court as it related
to the visitation schedule.
As to the visitation, the appellate court held “this court has previously reversed similar visitation provisions that included an automatic modification of visitation based upon the passage of time or the occurrence of an event unrelated to visitation.” Although, in this case, the court indicated that it would review the case in six months, a trial court loses jurisdiction 30 days after entry of a judgment.
The appellate court determined that anytime the non-custodial parent wanted a review of the visitation schedule, the father would have to file a petition to modify the divorce agreement. The appellate court did a good job ruling in this case. The visitation schedule in the divorce decree was void on its face as to the terms.
As in any divorce case, visitation schedules are important to the non-custodial parent. If you are a non-custodial parent and believe that you deserve more visitation, please feel free to contact me to discuss your case.