Introduction To The Issue: Reasonable Access
We had a client who engaged another firm for his divorce. Right after that, he sought us out. “I have a serious problem,” he said. “My divorce order says, I get reasonable access to see my son. But I’m not getting to see my child.”
When talking about visitation rights, it’s a fair question. What’s reasonable? Who is to say what is too much and what is too little?
The gentleman had a problem with his visitation rights, because the lawyers from both sides who put their minds together, did not spell out what was reasonable. What they were concerned about was sealing the deal, and getting the divorce order.
As a result, his ex-wife interpreted “reasonable” to mean “once a month, for one hour, on a day that I say it is.”
Miss that one hour, and you’ll need to wait for a month.
Her reasoning was, “I am a busy woman, so you’ll need to follow my timing. One hour a month is reasonable.”
But, to many others, one hour a month, isn’t reasonable at all. In fact, it might be too short to do anything meaningful together.
And that was the problem that our client came to see us about.
What We Told Our Client About “Reasonable Access”
Reasonableness under the law is highly subjective, even though, we hope that there are objective tests.
What one judge deems to be reasonable, may seem unreasonable to another.
But to use the words, “reasonable access”, without defining the time frames and the days for visiting, would seem a little reckless.
Judges have grappled with the concept of what is reasonable. For example, there was the famous passage about the “reasonable man”, which has mystified and piqued the interest of legal jurists throughout the Commonwealth. (See here, here, and here for examples of boffins pontificating about what the “reasonable man” should be.)
Long story short, your idea of “reasonable access” may be very different from your (former) spouse’s idea.
You might think that you’ll get time to see the kid every weekend, or every other weekend.
Maybe you think that you’ll even have overnight access.
But the other party could be thinking about once (or twice) a month, Touch N Go style. (Some former spouses accept that some access is necessary to convince you to continue paying maintenance.)
So, if you’re going through a divorce, the best thing you could do is to avoid uncertainty.
You Need to Spell Out Your “Reasonable” Visitation Rights!
If you’re planning on settling with your spouse, you will probably need to negotiate on access to the child.
How many times in a month will you get to see your child?
How many hours, on each occasion?
Does it include overnight access?
Does it include access over the weekend?
These are worth discussing during the negotiation process … which can happen any time during the divorce, even halfway during the trial!
In one case, our client decided to “lock-in” on his visitation rights…
Looking back, it was a good move, because his ex-wife would try to shift the visiting hours around, based on her “availability”.
Locking in your visitation hours can be as simple as a line in the Decree Nisi that says, “Father gets to visit child once a week, on Tuesday nights, from 6 pm to 10 pm.”
At first, the wife didn’t allow him to come, because she was “busy”.
Once, he went to the house and the house was dark.
“Where are you?” he asked over the phone.
“Pasar malam!” she shouted back, over the din of street hawkers.
We wrote to her lawyers and reminded them that his weekly visitation rights were baked into the Decree Nisi.
Locking in your visitation hours would guarantee you face time with your child.
In the worst case scenario, even if there’s no overnight access, you’ll still get face time.
It would at least be better than “reasonable access”, which is vaguely worded and will be vaguely defined.
This article may seem biased towards men, and we understand how some lady readers may feel. Unfortunately, for the majority of fathers, custody of young children would go to the mothers, so a good majority of fathers don’t get custody. What they do get, instead, is visitation rights.
Unfortunately, too many court cases end up with Decree Nisi drafted in vague wording, which is open to one-sided interpretations. Those vague wordings include “reasonable access” … a shortcoming that can be remedied by defining the time slots available for the visits.
With time slots, a parent can assert his or her rights, as per the court order.
“Look at this court order”, you could then say. “I have a right to visit my child.”
And you would be right about that.
Thanks for reading.
This article has been prepared for general information purposes. Your case might be different, and you should schedule a consultation with a legal professional (maybe us) before you make any decision.