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  • 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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  • #2
    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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    • #3
      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.

      Hope this helps

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      • #4
        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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        • #5
          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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          • #6
            Originally posted by stripes View Post
            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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            • #7
              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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              • #8
                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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                • #9
                  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.
                  Last edited by trinton; 01-09-2017, 01:19 PM.

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                  • #10
                    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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                    • #11
                      Originally posted by rockscan View Post
                      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.
                      If he is available to look after the child in the times that the custodial parent is placing the child in daycare, he can and will argue that daycare is not needed. The onus is then on her to prove that it's in the best interests of the child to be in care of a stranger as opposed to the child's other parent - you can never trust strangers with your kids.

                      To say he just want's more time to get 50/50 and reduce child support will backfire on you, he can just drop his claims for offset in child support, continue to pay the full amount and seek 50/50 - what will your argument be then? Are you sure you're not opposing 50/50 in order to have maximum control over the child and other parent as well as to maximize your child support benefits?

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                      • #12
                        Originally posted by trinton View Post
                        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.
                        ROFR can't be used that way. Judge won't enforce it. It isn't a mechanism to control the other parent. You have a lot of learning still to do.

                        Read the articles I linked above...

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                        • #13
                          Originally posted by stripes View Post
                          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).
                          ^^^^^ This!

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                          • #14
                            Trinton, the other poster has stated care is provided before school. The other parent cant provide this care on a regular basis which would create difficult for the parent on days dad cant take the kids. Plus he IS using this one unenforceable clause as a way to bolster his case without having the parenting plan to prove he could do it.

                            Try to separate your situation from others.

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                            • #15
                              Originally posted by rockscan View Post
                              Trinton, the other poster has stated care is provided before school. The other parent cant provide this care on a regular basis which would create difficult for the parent on days dad cant take the kids. Plus he IS using this one unenforceable clause as a way to bolster his case without having the parenting plan to prove he could do it.

                              Try to separate your situation from others.
                              Most schools have before and after school care programs for $10/day. You could leave the child at the school before school on days father is not available, but still give him the opportunity to have the extra time when you are not available. That would give the father more time and a chance to have more time when possible without taking any time away from you.

                              He would just give you his week schedule one week in advance and so you know ahead of time which days he will be taking her and which days not. If he doesn't show up by a certain time to pick the kid up then you assume he is not showing up and you take them to the before school care. simple.

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