How does visitation work in divorce with children?

The visiting regime is the right, and also the duty, of the non-custodial parent to interact with his or her minor children in situations of marriage annulment, separation and/or divorce.

This issue is often a source of conflict between the parents, both at the time of the marital separation, and subsequently, in the daily functioning of the regime agreed by the spouses or judicially imposed.

What is access

When a couple ends their relationship, whether it is a marital or non-marital union, in the situation where there are children under the parental authority of both parents (unemancipated or disabled minors), the custody and guardianship regime of the children has to be established. In the situation where an individual custody regime is agreed in favour of only one of the parents, it is necessary to regulate a visiting rights regime in favour of the other parent who will not have custody of his or her children.

This right and duty of the non-custodial parent must always be subordinated to the interest and benefit of the minor child, and its regulation, whether by mutual agreement between the parents or by court decision, must always be governed by the best interests of the common child.

Regulation and types of visiting arrangements

The regulation of visiting arrangements is detailed in Article 94 of the Civil Code, which refers to visiting arrangements as specifying "the time, manner and place in which the parent who does not have the minor children with him or her may exercise the right to visit them, communicate with them and keep them in his or her company".

Therefore, the visiting arrangements include both the specific stays, of longer or shorter duration, of the non-custodial parent with his or her minor children, and the possibility of communicating with them at specific times, by telephone or electronic messaging.

This right also affects the non-custodial parent in respect of "children of full age or emancipated children with disabilities who need support in making the decision", as the above-mentioned article goes on to say.

What factors are taken into account when decreeing visiting arrangements?

Basically, the following:

- The age of the children. It is not the same to regulate the visits of a parent with a five year old child as with a fifteen year old child. In the second case, it is necessary to have their opinion and to take into account their extracurricular activities, their social relations, etc.

- The geographical distance between the homes of the child and the non-custodial parent. Living in the same area or neighbourhood is not the same as living in different towns or cities.

In practice, the most common visiting arrangements are that the parent has access to the children on alternate weekends, plus one or two afternoons during the week, depending on the children's age, any extracurricular activities they may have and the parent's work schedule.

Can the visiting arrangements be changed? How?

When the circumstances that were taken into account at the time of the separation or divorce vary substantially from the current circumstances, the visiting arrangements may be changed by the same two possible ways of establishing them, namely:

- By the parents signing a new regulatory agreement that establishes the new form agreed for carrying out the said visiting arrangements.

- By a court ruling in a procedure called modification of paternal- filial measures, if no agreement is reached.

Visits in favour of grandparents and other relatives.

Finally, reference should be made to the right of siblings, grandparents and other relatives of the minor children to have contact with them. In such a case, the judge must hear the parents, and must adopt the corresponding decision, always taking into account the interests of the minor.

If you wish to request a modification of measurements, do not hesitate to contact us.