Visitation and Parent Unavailability

In the midst of a child custody dispute, the most common concerns are who will be the primary custodian and how the child’s time be divided between the two households. Custody orders are usually structured around the idea that during visitation, a parent will be spending the majority or his or her time with the child, barring the time that is necessary for work or school. Custody orders rarely take into account the possibility of what will happen if one parent is unavailable during his or her court-ordered time with the child.

One way this concern arises is when the parent who is currently enjoying visitation goes on vacation without the child. The parent may leave the child in the care of a grandparent or family friend. The parent who is not on vacation may feel this is unfair, as he or she could be the one enjoying extra time with the child instead of a non-parent or even non-family member. Barring a specific provision in the custody order to the contrary, the vacationing parent has every right to decide what to do with the child during his or her court-ordered time. As long as the vacationing parent chose a suitable person to watch the child, then this is a permissible arrangement. It is due to situations like these that some parents choose to have the “right of first refusal” inserted into their custody order. This provision requires that if the parent enjoying visitation will be unable to watch the child for a certain amount of time (usually measured in hours), then he or she is required to allow the other parent the first chance at being the one to watch the child during the time the parent is unavailable. Although the vacationing parent is within his or her rights to leave the child with a suitable guardian, repeated instances of this type of behavior may constitute grounds to have the custody order changed to insert a right of first refusal or a change in the visitation schedule.

Incarceration is a different situation. Unlike a vacation, incarceration is typically a long-term situation. In such a case, the incarcerated parent will not have the right to simply “give” his or her visitation to a family member or friend. The non-incarcerated parent will have the right to keep the child. This does not mean that the incarcerated parent has lost parental rights or that he or she may no longer contact the child. These are specific inquiries that must be made by the trial court.

Continuing to work with another parent can be challenging, especially the parent is unavailable for your child during court ordered time. If you have questions about your order, contact us today at (732) 529-6937. We will talk to you about your custody order and your child.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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