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The opposing party is getting evicted - Child Visitation

Carlsbad, CA |

I am in the middle of divorce (madiation & hearing next month) and I was just noticied by the landlord of where I used to live that my soon to be ex was given a 3 day notice to vacant the house due to failure of paying rent. My soon to be ex has 30% visitation which consists of 2 overnight (in a row). I am concerned sending our child to him when he is in this situation. He is not responsible, living with his parents who will be evicted with him, and smokes pot everyday. I have been trying to modify the visitation but he postponed the last hearing by obtaining an attorney. I am just concerned about our child's well being. What can I do? Do I have right to withhold the visitation if he gets evicted and not notify the change of address within 24 hours? Should I ask for Ex Parte hearing?

Attorney Answers 1

Posted

This is certainly a tough situation, however, getting evicted, in and of itself, is not enough to withhold visitation from him. It doesn't automatically mean that the child will not be safe with him during that time, however, depending on what he is planning to do regarding his living situation could certainly be of concern to you and the child's best interests. Have you tried to talk to him about the situation and tell him your concerns? Ask him to give up his 2 over-nights until he is settled in a suitable living arrangement? The other issues are certainly cause for your concern, and when you add these issues in, I can see your problem, however, in order to get a change on an ex parte basis, you have to show immediate or irreparable harm to the child. That is a tough hurdle to get over given these facts, specifically when you don't know what is going to end up happening regarding his living arrangements until after he is out. He may pay the rent within the 3 days and not have to move! I think you should talk to an attorney and discuss these issue more in detail, but definitely with an attorney!

This response does NOT create an attorney-client relationship. This response is for educational purposes only. This response is not intended to be legal advice to the reader.

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2 comments

Asker

Posted

Hi John, thank you for your answer. No, because there is a DV involved and I have a restraining order against him, I can't really talk about important issues and he has been very nasty against me. I really want to get an attorney as he has one but I am stuck with bills wihtout any support from him. (he is not working) I just got a call from the landlord and it looks like he is not moving out anytime soon. I would like to see if I can talk to an attorney who can represent me just for the upcoming hearing as I get very nervous in front of the judge. I am concerned his drug abuse too. Meanwhile I will just wait for the hearing to change the order, or we have madiation in August so that I can ask for a modification for a visitation? Also would it be better if I go into the mediation seperate due to the DV?

John F Cannon

John F Cannon

Posted

You can certainly get an attorney to represent you just for the upcoming hearing - Limited Scope Representation. Unless there is a big emergency, the Court usually won't make orders on an ex-parte hearing, so, yes, you will like have to wait until the hearing. Yes, you will be separated in mediation due to the DV. I would be more than happy to speak to you about your case and discuss representing you at the hearing. Give my office a call.

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