Visitation While a Custody Order is Pending

My question involves a child custody case from the State of: CA

Hi, my husband and I separated abruptly and unexpectedly in May of this year. I filed for divorce in August. Our marriage has had a lot of issues but due to my husbands abuse of prescription pain medication and constant lying I realized our marriage was broken beyond repair. Unfortunately, we also have two small children that are 3 and 6.
Prior to our separation we had an agreement where my husband would not be allowed to drive us as I had caught him under the influence on several occasions. During our separation we had a verbal agreement that he would be allowed to come visit the kids, I would be present and he would still not be allowed to transport the children. The children expressed their desire to see their father but wanted me to be there as well. Since May he has visited them twice for a couple of days each time. We had also agreed to a child support amount which he would sporadically pay but never consistent. The phone calls were becoming less frequent, he stopped calling and expected me to call him or the kids to call him. He said he needed to feel wanted and should not be the only person making the phone calls. I was a stay at home Mom before our split, I have since gone back to work and have to raise these kids by myself, my level of responsibility has increased significantly while also trying to cope emotionally with my marriage suddenly ending, I don't always have the time to pursue him. My husband lived with his mom and didn't work for a long time and would be at amusement parks and fishing trips yet expected me to do the work of calling him. He told the children they could call him any time and he would make time for them, I did that for awhile as well but his phone would be off or he wouldn't answer. I would text him that our son wanted to talk to him and he wouldn't respond or make an effort to call back.

Fast forward to present day my husband has completely flipped a switch and turned into someone I don't recognize. Back in August he was trying to convince me he was a changed man. That he would do everything and anything to provide for us and would be there for the kids. In September I found out he was actively pursuing another relationship and has since moved in with this woman and her child. My husband now refers to them as the family he has to provide for. He also now refuses to pay child support. I have since spoken with an attorney to get a court ordered visitation schedule and child support so that will work itself out in due time. This is where my issue comes in, my husband and I arranged for him to visit in November. We were still talking and he would call the kids every couple of weeks. He now no longer calls them or pursues them, all his time, energy and finances are spent on this new family. Our last conversation he got into a heated text argument with me stating he is bringing his girlfriend during his next visit and has no desire to spend a second with me and wants to take the kids alone for the weekend. He stated he will now drive them and I have no say in the matter and if I don't oblige he will call law enforcement on me. I don't have custody orders yet, in my custody requests I stated he shall not have overnight visitation or be able to transport the children. My primary concern is for our children, they will not be comfortable with him or the new love interest. They have no idea a new girlfriend exists and I specifically asked my husband not to bring her as we have only been separated barely 6 months. In doing this I'm trying to still preserve their image of him, I don't think they will take the new relationship well and could potentially see it as a betrayal to me and feel rejected. I also told him if he wants to bring her we need to have a sit down conversation as adults to see what's the best course of action and establish some boundaries to protect our children. He has no desire to work or cooperate with me in any shape or form.

If he sticks to his word and shows up that weekend with his new girlfriend and demands the children and calls PD on me, where does that leave me? I have no problem with him seeing the children, I have simply told him I need to be present and I want this to be a good visit for them and him. We will not fight and if things need to be discussed they can be done without the children present. I know they won't feel comfortable alone with him as he doesn't invest any time in them neither does he pursue them. I know he just wants to come and show of his children to his new girlfriend but I need to know my legal standings. In my mind I figure if he calls law enforcement and I explain the situation to an officer they will see my side and not force me to give up my children to him considering he abandoned them 6 months ago and I have the fear he will take them from me and take them home. I reside in LA and he lives near Sacramento. Thanks in advance for any advice or input!

You say that there are not yet any custody orders in effect. If you want a custody order that allows you to restrict or supervise your husband's visitation, file a motion with the court asking for such an order.

Without an order, you have no special right to restrict your husband's access or, for that matter, to compel him to return the children to your care once a visit is supposed to end.

Read this, including the portion on emergency cases.

So unless there's a court order there's nothing I can do and if I don't just give them up as he's requesting police will force me to do so? I can't imagine law enforcement would enforce that considering his history that I can prove of substance abuse and neglect. His last visit with them he took them to the movies and fell asleep for half of it, if I wasn't there my son could have run out of the theater. He has on multiple times left them alone and lost track of time. Him taking them alone could potentially put them in danger. I will contact an attorney in regards to getting a custody order before his visit in 2.5 weeks which doesn't give me a lot of time.

What proof do you have that he is a danger to the children?

You need to understand something. Absent a court order, he has just as much right to see and be with his children as you - with no restrictions. You say he could potentially put them in danger - he could say the exact same thing about you, couldn't he? Do you see how that works? You need proof that the children will be at risk without you being there and I'll bet dollars to donuts that you cannot prove that at all.

It is not the job of police officers to evaluate evidence and determine what it proves. As you abve already been told, without a Court Order, he has as much right to the children as you do.

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Quoting socalmom310

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So unless there's a court order there's nothing I can do and if I don't just give them up as he's requesting police will force me to do so? I can't imagine law enforcement would enforce that considering his history that I can prove of substance abuse and neglect. His last visit with them he took them to the movies and fell asleep for half of it, if I wasn't there my son could have run out of the theater. He has on multiple times left them alone and lost track of time. Him taking them alone could potentially put them in danger. I will contact an attorney in regards to getting a custody order before his visit in 2.5 weeks which doesn't give me a lot of time.

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Absent a court order, the police are NOT going to forcibly remove the kids from either parent to hand them over to the other. If both parents have equal rights ,then they will need to work it out. What COULD happen, if the wrangling gets too bad,is that the police might take the children into protective custody and turn them over to CPS until the issue is resolved.

If you do not want to let the kids visit dad,then don't. Absent clear proof of a demonstrable risk of harm to the kids,you might look to a court later on as vindictive, but,it's your call. Of course, keep in mind that if you withhold visitation, if he manages to get the kids, the police will not compel HIM to turn them over to YOU, either.