My ex-husband suffered a traumatic medical event and isn’t able to drive or communicate clearly still. He wants to resume regular overnight visitation with my kids, but I feel that only supervised day visits are appropriate. My children’s safety and care are my top priority. What are my rights? What should I do?
– Mama Bear
Dear Mama Bear,
Oh, geez, that sounds tricky. As a mother, I can totally relate to wanting to protect the kids from any potential danger. But in this case, how do you weigh the very real potential for a dangerous situation and your kids’ need to be with their dad? Our resident divorce law guru has some answers for you.
Here is what Amy had to say:
A court can change primary residence and conditions of contact when there is a substantial change in circumstances since the time of the original order and if the change is in the best interests of the children. It sounds like there is a court order in effect that currently allows your ex-husband overnight visits. It also appears there has been a substantial change in circumstance since that original order. You have the right to make a motion to the court seeking to modify the original order.
If you establish through evidence at a trial that supervised day visits are in the children’s best interest, the court can modify the original order. Some of the factors that the court might consider include the effect of your ex-husband’s medical event on his ability to parent, the risks to the children of overnight contact, the risk to the children of limiting their time with their father, the ages of the children and their ability to protect themselves if need be.
You may be wondering whether you must send the children to overnight visits at this time, with the current order in place. No one can advise you to disobey a court order. However, you obviously must keep your children safe. If you do not obey a court order, your ex-husband can seek to have you held in contempt. In such a hearing, the court would consider many of the same factors as in the hearing to modify the original order.
In extreme situations, you can seek an expedited hearing to establish that the children would be in clear risk if they were to have overnight visits as ordered. It might be helpful to have the perspective of your ex-husband’s physician on what he can or can’t do to determine the level of risk.
I am also wondering if there is a solution you and your ex-husband can agree to as he heals. For example, perhaps there is an adult who can be present at the overnight visits to help if necessary and to evaluate your ex-husband’s ability to parent.
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