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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 01-08-2017, 04:13 PM
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Default Right of first refusal in custody agreement

Interested in hearing from people who have this clause worked into their agreement. Wondering if it has created problems or is working out well. Wondering about impact on extended family ie. very involved grandparents, aunts and uncles, etc.



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Old 01-08-2017, 07:21 PM
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My understanding is that this clause is pretty much unenforcable. It's a nice-to-have, assuming both parents agree to it, but it doesn't have legal weight. If it's Dad's time with Kid, he is responsible for ensuring that Kid is well cared for, either by him or by someone he designates. He isn't obligated to give Mom the time. From what I've seen on the boards, these clauses degenerate into squabbles about "why is Kid in daycare when my grandmother could look after him?" and hurt feelings. I think it's best that Dad's time is Dad's time and Mom's is Mom's, and the other parent stays out of the way (unless of course there's abuse or neglect going on).
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Old 01-08-2017, 07:41 PM
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Stripes is pretty much on the money...this type of clause is reserved for more extreme cases. I have care for my child on my time whether I'm available all the time or not. So does my ex. We choose not to squabble over that piece, although in the beginning my ex wasn't too happy about my g/f being part of my care plan.....but she can see how amazing my g/f is with our daughter and realizes that I have a solid parenting plan and that my time is just that.....my time.

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Old 01-08-2017, 09:40 PM
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Quote:
Originally Posted by stripes View Post
My understanding is that this clause is pretty much unenforcable. It's a nice-to-have, assuming both parents agree to it, but it doesn't have legal weight. If it's Dad's time with Kid, he is responsible for ensuring that Kid is well cared for, either by him or by someone he designates. He isn't obligated to give Mom the time. From what I've seen on the boards, these clauses degenerate into squabbles about "why is Kid in daycare when my grandmother could look after him?" and hurt feelings. I think it's best that Dad's time is Dad's time and Mom's is Mom's, and the other parent stays out of the way (unless of course there's abuse or neglect going on).


So even if it was written right into the agreement you don't think it would be enforceable? Probably wouldn't look good on the parent who isn't following it though if custody time got revisited down the road.


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Old 01-09-2017, 12:05 PM
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If you and your ex can agree informally that each of you will call on the other one if assistance with child care is needed during your parenting time ... great. But it's not enforceable (and how on earth would you enforce it? Would you try to take Dad to court if he calls a babysitter instead of your mother to look after Kid?) why put it in your order?

Parents have autonomy during their parenting time (that's why it's "your" parenting time and "his" parenting time, not "our" parenting time). As long as Dad isn't leaving Kid in an opium den run by wolverines, what he does during his parenting time is not your business. If he is a conscientious parent who makes appropriate arrangements for Kid, there will be no implications for custody down the road.
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Old 01-09-2017, 12:08 PM
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Quote:
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If you and your ex can agree informally that each of you will call on the other one if assistance with child care is needed during your parenting time ... great. But it's not enforceable (and how on earth would you enforce it? Would you try to take Dad to court if he calls a babysitter instead of your mother to look after Kid?) why put it in your order?



Parents have autonomy during their parenting time (that's why it's "your" parenting time and "his" parenting time, not "our" parenting time). As long as Dad isn't leaving Kid in an opium den run by wolverines, what he does during his parenting time is not your business. If he is a conscientious parent who makes appropriate arrangements for Kid, there will be no implications for custody down the road.


I completely agree with this. It is my ex who wants it in the agreement. Especially in a highly contentious case such as mine, I think it's just asking for trouble.


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Old 01-09-2017, 12:10 PM
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Quote:
Originally Posted by Ange71727 View Post
I completely agree with this. It is my ex who wants it in the agreement. Especially in a highly contentious case such as mine, I think it's just asking for trouble.


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Ah, my mistake. I thought you were the one who wanted the clause. You're right, this kind of clause just stirs up more trouble because it gives the parents one more thing to argue about, and you want to limit the number of things that it is possible to argue about.
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Old 01-09-2017, 01:08 PM
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ROFR is a waste of time!

https://garydirenfeld.wordpress.com/...-pandoras-box/

Your Social Worker - Gary Direnfeld, MSW, RSW

Read those two articles from a well-known Section 30 evaluator. They are what are known as "good will" statements that can't be enforced by the court.

When you say "no" send copies of the two above articles with the "no" too. That way you can attach your "no" to a future affidavit with the articles.
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Old 01-09-2017, 01:16 PM
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I am in the same boat, but I will be using the right of first refusal as a way to eliminate the need of a full time daycare provider, i.e., if the mother needs more than 10 hours of care during the week then the time should go to the father, as opposed to the daycare creating unnecessary costs to the family.

So with the right of first refusal, if the other parent put's the child in daycare and then hands you over a receipt, you don't have to pay, because they went in contempt of the court.

The other parent should have the opportunity to exercise additional access with child as opposed to a 3rd party stranger non-family member. Daycare providers have the right to seek access through the courts if they wan't to spend time with your children, but should not be acting as daycare and using that as access time in disguise.

Of course, the other parent wants the child to have as little time with you as possible, so they will place the child in the care of a daycare provider of their choice who talks positively about them and helps in the brain washing process, doesn't call CAS on them, and enjoys the business she gives them (Which you have to pay for with no choice). This of course creates hostilities between the other parent and the daycare provider and exposes the child to conflict that could be avoided by allowing the other parent to enjoy the extra available time.

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Old 01-09-2017, 01:18 PM
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Angie, your ex is only using this clause to try to get up to 50/50 time and reduce cs. Your lawyer should be able to argue this one successfully. Especially if this ROFR will impact the kids care options. Some care providers wont work with wonky schedules or will charge more.

Everyone is responsible for the care of the children on their own time, period.
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