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Burden of Proof-PA-Removing Visitation Rights

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rouschkateer

Junior Member
What is the name of your state (only U.S. law)? Pennsylvania

Hello, all.
I have 3 children aged 14, 13 and 11. My ex-husband and I divorced over 2 years ago because of his mental instability and drug(s) addiction. Over the course of more than 10 years he has been addicted to marijuana, coke, speed, meth, methadone, prescription painkillers, heroin and "huffing." He has been in and out of rehab many, many times, and has been admitted both voluntarily and involuntarily to mental institutions for spans of a few weeks at a time. He was also part of Methadone clinics for heroin addiction, which he abused and was removed from being able to participate in.

Over the course of the past few months, he was imprisoned for a car accident in which he wrecked a car following a huffing episode (December). He served a month's time and was released. He then this past week overdosed on heroin (he actually died - the hospital staff revived him). I was not notified of this and on the weekend, when he was supposed to come pick up his children for a birthday party, he never arrived. After his parents picking them up, I came to find out AFTER the children came home (and was told the story by my children, not the grandparents!) that their father was in another car accident after inhaling again.

Now he is in a temporary rehabilitation facility again - after a week's time, he will be released. Afterwards, he is supposedly going to his parent's house until he finds a "halfway" or recovery home (isn't he supposed to go to jail? LOL - different thread, I guess).

I DO NOT want my children around this anymore. My 14 year old is disgusted and saddened, as is my 11 year old. My 13 year old still holds hope for him, however. I called and told his parents I WILL NOT allow him to see or speak to the children anymore. I want HIM to have to prove to ME that he is stable enough for visitation.

No, there is NO court order for visitation. The only stipulation by court is a Domestic Relations child support stipulation. He is 100% up to date on his payments (they come out of his SSD checks).

So, now to the question - of course when I take him to court the burden of proof will be on me. I will have to prove that he was in and out of the mental institutions, rehabs, clinics, etc....or is it? If I do take him to court, will THE COURTS ask for the father to retrieve his own medical records?

I just would like to know ahead of time, and I will also monitor this to see if I need to supply any additional answers.

I am not looking for sympathy, only reality.

Thank you all very much in advance.
 


cyjeff

Senior Member
If there is no court order for visitation, you don't have to allow the children to see him at all.

Having said that, when he does take you to court for visitation, it will look terrible that you denied him that right... unless you can prove he is a danger to the children.
 

rouschkateer

Junior Member
Which goes back to my original question - HOW do I prove it? I can't just ask for medical records...will a lawyer have to be involved?
 

cyjeff

Senior Member
Which goes back to my original question - HOW do I prove it? I can't just ask for medical records...will a lawyer have to be involved?
I would definitely talk to an attorney... the initial consult will usually be free.

You do not have the right to his medical records... but the criminal records are another story. If he has a record of driving while intoxicated, then you have something to work with.
 

rouschkateer

Junior Member
It has been suggested that I go to CPS as well, but since he has not ACTUALLY endangered my children, I'm just AFRAID that he will...would it make a difference if I reported him first?
 

Proserpina

Senior Member
It has been suggested that I go to CPS as well, but since he has not ACTUALLY endangered my children, I'm just AFRAID that he will...would it make a difference if I reported him first?

You cannot report him for something he hasn't yet done; "what if" and "maybe"
may not account for much.
 

rouschkateer

Junior Member
I would have to obtain his mental institution records for the couple of times he tried to kill himself. I also have his police records of the past 4 times he was arrested for drug use, the accident while huffing, and heroin overdose.

If he is a danger to himself, isn't he a danger to others?

If removing visitation altogether is too "harsh", then I can go with extremely supervised visits.

To answer your question - do I have hardcore proof such as (what?) pictures or video of him driving recklessly with the children in the car? Visiting drug dealers? Calling his dealers with my children's cell phones?

Nope.

And I have yet to actually receive an answer to my original question...
If I do take him to court, will THE COURTS ask for the father to retrieve his own medical records?
 

Proserpina

Senior Member
I would have to obtain his mental institution records for the couple of times he tried to kill himself. I also have his police records of the past 4 times he was arrested for drug use, the accident while huffing, and heroin overdose.
Were the children in his presence during these incidents?

If he is a danger to himself, isn't he a danger to others?

If removing visitation altogether is too "harsh", then I can go with extremely supervised visits.
Frankly you haven't yet shown that supervised visitation is justified - honestly, I see where you're coming from, but unless he has in the past endangered the children directly by his actions...you're going to be hard pressed to convince a judge to order supervised visits.

To answer your question - do I have hardcore proof such as (what?) pictures or video of him driving recklessly with the children in the car? Visiting drug dealers? Calling his dealers with my children's cell phones?

Nope.

And I have yet to actually receive an answer to my original question...

Him doing drugs is NOT necessarily evidence that he is either unfit, or requires supervised visitation. Seriously. It's just not.

What do believe his medical records will prove? (hint: they're not going to prove that he is unfit).

Can you have them subpoenaed? Possibly. Will they make a difference? Probably not.
 

ecmst12

Senior Member
He has never endangered your children. So there is nothing to prove. Even if he HAD endangered the children, he would still not be completely denied visitation, he would likely be ordered supervised visitation.

Your children only get one father, mistakes and all. They are not old enough to decide whether they want to have a relationship with him. YOU need to make that decision for them, and that means you need to encourage them, even force them, to talk to and visit dad. His children might well be the only thing that could help him get through this rough time. Knowing that they are waiting and wanting him to get well. And god forbid if he WERE to OD at some point in the future, would the kids really want to have missed this chance to see him and spend some time with him now, while he's sober and trying to get his life together? So instead of indulging their anger and your fear, you should be reminding them that he's their father and he loves them, and they love him too, even though there's all those other confusing feelings mixed in there.
 

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