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Reasons to Deny Overnight Visitations

When you file for divorce or separation, overnight visitation schedules are outlined in your Washington parenting plan. If you are curious about how your parenting plan will look and what kinds of questions and issues you’ll need to address as you write your parenting plan, you can find an example of the parenting plan form on the Washington Courts forms website.

If you are planning to get divorced and have children, are planning to get separated and have children, or if you are an unmarried couple with children who plan to live separately, a Washington parenting plan will outline shared parenting time through a Parenting Time Schedule provided in Washington’s parenting plan form. For the purposes of Washington law, Washington state doesn’t recognize terms like “custody” or “visitation.”

Under Washington law, one parent is named the child’s custodian “solely for the purpose of all state and federal statutes which require a designation or determination of custody.” While the custodial parent doesn’t receive special parenting privileges under Washington law, according to a relatively recent article in the Union-Bulletin, it is important for parents to keep in mind that the custodial parent designation can provide important benefits when it comes to federal law, including access to child tax credits and exemptions. The custodial parent’s income is also used to determine state and federal aid, and the custodial parent will typically be the parent entitled to child support.

If you are getting divorced or separated, deciding who will be designated the custodial parent is one of the important decisions you’ll need to make. Deciding how you and your former partner will share parenting time is another major factor in your parenting plan.

In this article, we’ll look at what a typical parenting plan might look like, that is, a parenting plan that includes overnight visitation, and we’ll also explore the specific circumstances where overnight visitation may be denied, or where, at the very least, visitation must be limited under the law.

What Does a Typical Parenting Plan with Overnight Visitation Look Like?

When it comes to designing a parenting plan, parents have the freedom to create a schedule and plan that works for their families.

According to the Washington State Parenting Plan Study published back in 1999, 45% of parenting plans designated a primary residential parent with provisions for every-other-weekend visitations for the non-residential parent (as well as one visitation evening a week on a weekday). Among the plans studied, very few allowed for residential time every weekend, and even fewer involved a 50-50 split of parenting time. The mom was the primary residential parent in 75% of these plans.

The reality is that times have changed in the last twenty years. The idea that the children are automatically better off living with the mother is considered outdated. Legally, more states have moved away from the “custody” parenting plan model (where the mother was typically awarded custody), toward a more egalitarian, co-parenting approach. Both parents have become increasingly involved in caretaking duties. According to the Pew Research Center, in 82% of homes, both parents work for pay, and one out of five parents are stay-at-home dads. For many involved fathers, the idea of only being able to see their children every other weekend would be unacceptable.

Parenting plans have changed with the times, with more parents choosing 50-50 parenting time splits, or divisions of time that allow for more frequent visitation with the “non-custodial parent.” Parenting plans may also consider both parents’ work schedules, to ensure that when possible, parenting time is arranged to meet the childcare needs of both parents. For example, even in situations where a non-residential parent may not have “overnight visitation” with the child during the week, the non-residential parent may still see and care for the child daily while the residential parent works.

Parenting plans also typically outline how holidays will be spent, with parents either choosing to split the holidays between both parents, or make arrangements for the children to be with each parent on alternate years. Many parenting plans will also include provisions for summer or winter holidays with each parent.

The reality is that there is no such thing as a “typical” parenting plan, though there are template time schedules that parents can evaluate to determine which is best for their family’s needs. If both parents agree that no overnight visitation for one parent is required, then your parenting plan can specify these arrangements. Perhaps daytime visitations are sufficient for the non-residential parent, or the non-residential parent will be moving to another state or county and regular overnight visitation doesn’t make logistical sense.

Judges and courts generally want to avoid situations where the court or a judge is forced to make decisions about parenting time, custody, and parental decision-making. If parents can find a parenting plan agreement that is mutually beneficial, the courts will generally approve the plan, unless the courts have concerns about the best interests or safety of the children. In most situations, parents also don’t want a judge, or the courts, involved in decisions as personal as parenting time, visitation, and parental decision-making. For this reason, many parents resolve to craft their parenting plans outside of court, either through negotiation, mediation, or through the collaborative divorce process.

In general, unless there is a concern for the children’s safety, most parents tend to negotiate parenting time outside of court, through mediation, or by choosing collaborative divorce, a process where both parents agree beforehand to keep their divorce outside of court.

Situations Where Overnight Visitation Might Be Denied

If you look at Washington’s parenting plan forms there are specific circumstances where the “court must limit the parent’s contact with the children” and “the right to make decisions for the children.” These limitations can include restrictions on overnight visitations, denial of overnight visitations, and may even include limitations on visitation, including supervised visitation. If any of the situations below are identified, then the court “must limit that parent’s contact with the children.” These situations include:

Furthermore, there are situations where the court “may limit that parent’s contact with the children.” There may be more discretion in these cases. These situations can include:

  • Neglect
  • Emotional or Physical Problems
  • Substance Abuse
  • Lack of Emotional Ties
  • Abusive Use of Conflict
  • Withholding the Child
  • Or Another Situation

When problems are identified in the parenting plan, both parents can either choose to place no limitations on the parent (and specify the reasons why no limitations are being sought), or make provisions so that shared parenting time comes with limitations that can include: (1) no contact at all, (2) limited contact with the children outlined in the parenting schedule, (3) limited contact on specific occasions (no schedule), (4) supervised contact.

Other limitations can be placed on parenting time, and these limitations could include denial of overnight visits.

In the next section of this article, we’ll explore the reasons why limitations could be placed on a parent, and situations where these limitations may include denial of overnight visitation.

Abandonment

According to RCW 26.09.191, the court must limit residential time with a child if the court finds that there was “willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions.”

The law specifically defines what abandonment means. Under RCW 13.34.030, abandonment “means when the child’s parent, guardian, or other custodian has expressed, either by statement or conduct, an intent to forego, for an extended period, parental rights or responsibilities despite an ability to exercise such rights and responsibilities. If the court finds that the petitioner has exercised due diligence in attempting to locate the parent, no contact between the child and the child’s parent, guardian, or other custodian for a period of three months creates a rebuttable presumption of abandonment, even if there is no expressed intent to abandon.” Abandonment can also be seen as a situation where a parent “leaves a child without the means or ability to obtain one or more of the basic necessities of life such as food, water, shelter, clothing, hygiene, and medically necessary health care.”

Furthermore, behavior that shows a disregard for the health, welfare, or safety of the child could also be seen as abandonment. For example, while incarceration would not be considered abandonment, but repeated criminal activity or conviction requiring a long-term incarceration could be considered abandonment.

The court could view a parent’s non-involvement in child-rearing as abandonment. It could also view extreme parental neglect as abandonment.

Neglect

Whether the court is required to limit contact with a parent due to neglect will depend on the severity of the neglect. When the parent “substantially refused to perform” parenting duties, the court may be required to limit contact.

According to the Child Welfare Information Gateway, neglect includes situations where a parent’s “conduct, behavior, or inaction” creates a “clear and present danger to a child’s health, welfare, or safety.”  For example, exposing a child to drugs or to materials used in drug production could be seen as neglect. Failing to provide a child with food, water, shelter, clothing, hygiene, or medically necessary treatment could also be seen as neglect.

If a parent doesn’t have safe shelter or a safe place for a child to sleep (due to homelessness, for example), overnight visitation may be denied. If a parent’s drug use or drug offenses suggest that a parent’s home might be unsafe for the child, overnight visitation may be denied, and other limits on parenting time may be imposed. Poverty isn’t reason to deny visitation, and the courts generally will take steps to help a parent seek appropriate housing and resources so as to eventually be able to enjoy less restricted visitation.

Child Abuse


According to the Washington State Department of Children, Youth & Families, Washington law defines child abuse as “injury, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child” where the child’s “health, welfare, and safety is harmed.” Child abuse excludes physical discipline. A pattern of emotional abuse can also be considered child abuse. If a parent has a history of child abuse, overnight visitation may be denied, and other limits on parenting time may be imposed.

Domestic Violence

Domestic violence is defined by RCW 26.09.191 as “an assault or sexual assault that causes grievous bodily harm or the fear of such harm or that results in a pregnancy.” Yet, domestic violence can also be defined under Washington’s definition of coercive control.

Under RCW 7.105.010 “coercive control” is defined as “a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm and in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” This can include a pattern of damaging or destroying property; using technology to stalk or intimidate; threatening or carrying a weapon capable of causing bodily harm in a way that intimidates; reckless driving with a partner or minor child in the car; threatening to harm children, pets, or family members; harming a partner’s career; attempting suicide or self-harm; threatening to use immigration status against an individual; taking or controlling a person’s identification; threatening to reveal personal information; engaging in sexual coercion; forcing a partner to have a child against their will; isolating a partner; financial abuse; using litigation abusively; or using psychological aggression.

A criminal record of physical or sexual violence causing grievous bodily harm will often be easier to prove than a history of coercive control. Individuals who are concerned for their safety or their children’s safety who are in the process of seeking custody of their children should seek legal support from legal experts and community supports who have experience handling child custody and domestic violence cases. Collaborative law and mediation is usually not appropriate in these situations.

If domestic violence can be shown, the court would be required to place limits on parental contact including possibly denying overnight visitations.

Assault


If the parent assaulted an individual outside the home, and the assault resulted in “grievous bodily harm” or caused an individual to fear grievous harm, then the court may also be required to place limits on parental contact or deny overnight visitations. Grievous bodily harm typically refers to severe or permanent injuries, for both domestic violence and for assault of non-family or household members.

Sex Offense

If your partner has been convicted as an adult of a sex offense involving a minor, or if someone living in the parent’s home has been convicted of a sex offense involving a minor, then contact with the parent may be limited and denial of overnight visitations may be granted. Yet, even in this circumstance, the parent facing limitations in contact could potentially submit a rebuttal for these limitations if he or she could show that he or she is in treatment and that the treatment provider believes contact is appropriate. If the parent can show the court that contact with the offending parent poses minimal risk to the child, then visitation may be granted. The parent may also have more leeway in removing limitations if the child wasn’t the victim.

Other Situations Where the Courts May Deny Overnight Visitation

There are other situations where the courts may limit parental contact or deny visitation. In these situations, the court is not required to impose limitations and limitations may be imposed on a case-by-case basis. For example, if a parent’s emotional or physical limitations pose a risk to a child staying overnight, then the court may deny overnight visitations, or see that the parent has accommodations in place to ensure the child’s safety. If a parent’s substance abuse could potentially impact a child’s safety or there is concern about neglect if a child were to spend the night, the court may impose limitations including denying overnight visitation, or the court may require substance abuse treatment and regular substance abuse testing.

If your former partner isn’t emotionally connected to the child or wasn’t present as a parent and now is seeking overnight visitation, the court may deny overnight visitation due to lack of emotional ties.

Withholding the child could also result in limitations being placed on a parent. If a parent fails to abide by a parenting plan’s visitation schedule or fails to return the child to a residential parent’s home as specified by the parenting plan, then a parent could request that overnight visitation be terminated, or limitations be placed on parental contact. If a parent moves to another state or county without informing the other parent, limitations could be ordered by the court.

A contentious custody battle could also result in the court looking upon one of the parents with suspicion of parental alienation. If a parent doesn’t have any of the grounds above for limiting contact or cannot prove the grounds for limiting contact, but still fights for limitations being placed, the court could potentially place limitations on the parent seeking these limitations. This is why limitations or denial of overnight visitation should only be sought in situations where overnight visitation is feared to cause a safety issue, health issue, or threaten a child’s wellbeing, and where the parent seeking these limitations has proof that a safety concern exists.

Because cases involving limitations can be complex, it is generally a good idea for a parent seeking limitations to seek the help of a custody lawyer or divorce lawyer who handles difficult custody cases.

Collaborative Divorce and Child Custody

Sometimes parents agree, of their own free will, that overnight custody isn’t best for their family situation. Perhaps the non-residential parent spends most of the day with the child, or perhaps the non-residential parent lives too far away. Sometimes, a parent willingly relinquishes parental responsibilities, or overnight responsibilities. In these instances, parents may be able to negotiate a parenting plan that works for them.

However, in many situations requiring denial of overnight visitations, other issues are present, as seen above. In these instances, collaborative divorce may not be appropriate, nor may it be the best approach.

Truce Law is a collaborative divorce law firm in Seattle, Washington that can take the time to understand your unique situation and help you understand whether collaborative divorce is right for you.

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