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Parenting Issues This forum is for discussing any of the parenting issues involved in your divorce, including parenting of step-children.

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Old 05-14-2012, 11:35 PM
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Default First Right of Refusal not in agreement but...

What if, for some bizarre reason, a "first right of refusal" clause never made it into the separation agreement?

What do i do if i discover that my children's father is going to be a 10 hour plane ride away and literally "out of contact" on a jungle wilderness expedition during his time with our children for a week this summer and plans to find other care for them.

What if I would like to be the first choice for the children's care but he is so high conflict that he sees my request for first right of refusal as "losing" in a war with me because he is giving ME something rather than imagining that the children are winning?

Is there anything i can do? -- and yes, i have offered him the same standard if i am to be away during any of my summer with the children.

HD
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Old 05-14-2012, 11:43 PM
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I found this which was helpful:

THE LIZ LIBRARY: Right of First Refusal in Parenting Plans and Custody Agreements - research on family law politics and child custody
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Old 05-15-2012, 07:03 AM
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Originally Posted by Hopefuldays View Post
What if, for some bizarre reason, a "first right of refusal" clause never made it into the separation agreement?

What do i do if i discover that my children's father is going to be a 10 hour plane ride away and literally "out of contact" on a jungle wilderness expedition during his time with our children for a week this summer and plans to find other care for them.

What if I would like to be the first choice for the children's care but he is so high conflict that he sees my request for first right of refusal as "losing" in a war with me because he is giving ME something rather than imagining that the children are winning?

Is there anything i can do? -- and yes, i have offered him the same standard if i am to be away during any of my summer with the children.

HD
This is why:

Your Social Worker - Gary Direnfeld, MSW, RSW

Read ^^^^ that article and you will see why it is not in the agreement. In fact, based on what you are writing now and that the matter is high conflict... It may be best to REMOVE the right of first refusal as it does nothing but create more conflict.

Good Luck!
Tayken
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Old 05-15-2012, 10:00 AM
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If it is not in the agreement and your ex won't agree with including it, you'd have to file a motion and have a judge include it.

Without it, you have no recourse over something like this. However, judges don't like them very much as they can create tension and "you should have called me first" fights. Plus they are almost unenforcable as unless your ex calls you and offers you the time, you'll likely never know they are gone.
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Old 05-17-2012, 11:42 PM
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Originally Posted by HammerDad View Post

Without it, you have no recourse over something like this. However, judges don't like them very much as they can create tension and "you should have called me first" fights. Plus they are almost unenforcable as unless your ex calls you and offers you the time, you'll likely never know they are gone.
What would be the recourse. I have it in our agreement, yet my child is dropped off at grandparents and picked up just before return. Sure the ex at the least picks the child up and takes to his house for over night sleeping, then back to grandparents.
the child tells me, and my ex pretty much is not denying this. what am i suppose to do
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Old 05-18-2012, 09:51 AM
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Originally Posted by tugofwar View Post
What would be the recourse. I have it in our agreement, yet my child is dropped off at grandparents and picked up just before return. Sure the ex at the least picks the child up and takes to his house for over night sleeping, then back to grandparents.
the child tells me, and my ex pretty much is not denying this. what am i suppose to do
All you can do is send R3 letters stating that you don't agree with the other parents decision to use a 3rd party for care and not abide by the court order. If they deny it, it becomes a he said/she said matter and unlikely to amount to anything.

If they say too bad for you, you save a few of them and take them to court for contempt and make up time.

But most of the time a judge will do nothing. If the other parent is using a 3rd party for caregiving so that the parent can work judges give them WIDE discretion. The second test is for how long? Is it less than 6-8 hours? If so, again a judge is unlikely to care.

It has to be repeated times where the parent uses some other caregiver so that they can take off for weekends at a time before a judge will entertain a contempt matter.
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Old 05-18-2012, 06:41 PM
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All you can do is send R3 letters stating that you don't agree with the other parents decision to use a 3rd party for care and not abide by the court order. If they deny it, it becomes a he said/she said matter and unlikely to amount to anything.
Furthermore... Is the child at risk of harm being neglect and/or maltreatment and/or abuse (emotional/physical) while in the care of the grandparents. Likely not so it may work against you if you try to leverage FROR.

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If they say too bad for you, you save a few of them and take them to court for contempt and make up time.
Not the most appropriate use of a contempt of court in my opinion. Contempt is a quasi-criminal action with a result of fine or incarceration. What remedy would you recommend instead on contempt? That the grandparents not care for their grandchild?

Quote:
Originally Posted by HammerDad View Post
But most of the time a judge will do nothing. If the other parent is using a 3rd party for caregiving so that the parent can work judges give them WIDE discretion.
I have even seen a judge completely disregard a Section 30 custody and access evaluator who claims to be a well recognized "expert" have their entire report ignored because they tried to setup a "psychologically neutral" childcare arrangement. The evaluator made no claim on fact that the caregivers were a danger or how not having grandparents involved in a child's life was not in the child's "best interests".

Suffice to say, the judge spent the next hour editing all the gramatical errors and scratching out the recommendations in the final agreed upon settlement. The professional didn't even spell the child's name correctly.

Quote:
Originally Posted by HammerDad View Post
The second test is for how long? Is it less than 6-8 hours? If so, again a judge is unlikely to care.
Judge won't care even if it is longer. They are blood related to the child. Unless they are a danger to the child the judge will laugh you out of court.

Quote:
Originally Posted by HammerDad View Post
It has to be repeated times where the parent uses some other caregiver so that they can take off for weekends at a time before a judge will entertain a contempt matter.
The caregiver has to be some threat of danger to the child in question. Unless the caregiver is a known affiliate of a criminal organization, a known misandrist lunatic feminist "lactivist/activist" (expresses extreme hatred for men) or a misogynist "fathers rights" victimization loon that believes the courts are out to get him (expresses extreme hatred of women) or has abandoned their own children's care a judge won't care.

The complaint has to be SUBSTANTIAL about the caregiver to even bring it on contempt.

Good Luck!
Tayken
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Old 05-18-2012, 07:00 PM
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The "LIZ LIBRARY" is something I track and just to advise everyone it is a highly non-gender neutral source of information and I am of the opinion that everyone should steer clear of that one for sure. No matter what gender you are.
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Old 05-18-2012, 08:28 PM
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Its a regular routine, the weekly visits consists of picking up child, dropping off at grandparents and pick up to return home ( a few hours ) the every other weekend, saturday all day with grandparents, and pretty much the same on sunday. My ex is self employed and will not provide me any type of work schedule. I know that saturdays are their busiest day and uses the business as an excuse when he`s had enough or a quick get away.
Now on to the the grandparents. They are elderly and I have ran into issues with them caring for our child. They do the bulk of the watching and they feel they have the same rights as the parents. They are old school grandparents and have had a serious negative influences on our child. And I just heard from child that one of them actually hits them... That in itself not sure how to address!
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Old 05-18-2012, 11:04 PM
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And I just heard from child that one of them actually hits them... That in itself not sure how to address!
CAS should investigate any allegations of child abuse.
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