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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 10-26-2011, 08:32 PM
Femme Femme is offline
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Default wild goose hunt for access with children

My friend's separation agreement states that he is to have access to his children on Friday at 6pm until Sunday at 6pm

His employment recently switched him to afternoon shift 3pm-11pm.

He notified his ex of this, requesting her to drop the children off at his residence at 6pm, where he would have a babysitter to care for them for approx. 5 hours, while he was at work. He told her that he would always return the children to her Sunday at 6pm.

(they're agreement does not state anything regarding which one of them is responsible for pick up/drop off)

Since he got switched to this 3pm-11pm shift. His ex just refuses to bring the children to his residence at 6pm on the Friday. So he ends up driving to get them Saturday morning for 9am--she is never home, he goes to her work--sees her car there/he calls her work, asks where the children are--and then he ends up having to pick them up from her parents house--turns out that she is dropping the children off at the parents or a sister's before 6pm on the Friday and leaving them there all night to sleep over, she works 7-3 on the Friday and then is going in for overtime on these Saturday mornings 7-3.

so she is refusing him to have the children cared for by a third party for 5 hours while in his care, but she is having the children cared for at 17 hours in her care--sometimes transferring them between her sister's house/parents house back and forth during those 17 hours.

Is she allowed to do this???

A year ago when he first got hired at this job, he was on afternoon shift 3pm-11pm---at that time the ex insisted that he go pick up the 2 and 6 year old at that time at midnight from her house, meaning he would not return back home to his residence with them until closer to 1am (it is a 40 min drive between their houses)

He is refusing to do it this time, as it is an inappropriate time.
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Old 10-26-2011, 10:01 PM
staysingle staysingle is offline
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The short answer is NO she is not allowed to do this!!. His access is his access and he needs put a quick end to this bullshit. Send a registered letter clearly that if this behavior continues he will file a contempt motion immediately.

Be sure to include in the motion that you wish to insert into the order a 'police enforceable clause'!!

A court order is a court order. She is engaging in PA and he needs to stop this immediately!

He may have no choice but to bring this back into court ASAP
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Old 10-26-2011, 11:38 PM
beebie beebie is offline
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Why doesn't he change his parenting time?
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Old 10-26-2011, 11:38 PM
HammerDad HammerDad is offline
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Does their agreement/order provide for a Right of First Refusal? If yes, what is the minimum time required to be enforceable?

If there is no ROFR, he should be documenting to her via mail and email advising her that she is honour the agreement/order and to have the children at his house as prescribed as she is not allowed to unilaterally alter the agreement. It is his position that this is his parenting time and, notwithstanding him being at work, it is his prescribed time and he is capable of finding adequate care-giving in his absence.
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Old 10-27-2011, 12:22 AM
beebie beebie is offline
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only reason I suggested changing his p time is because parenting time is supposed to be time with the parent not the substitute/ but what the heck...all our kids are day care orphans.
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Old 10-27-2011, 07:41 AM
Femme Femme is offline
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Quote:
Originally Posted by HammerDad View Post
Does their agreement/order provide for a Right of First Refusal? If yes, what is the minimum time required to be enforceable?

If there is no ROFR, he should be documenting to her via mail and email advising her that she is honour the agreement/order and to have the children at his house as prescribed as she is not allowed to unilaterally alter the agreement. It is his position that this is his parenting time and, notwithstanding him being at work, it is his prescribed time and he is capable of finding adequate care-giving in his absence.

There is a section in their agreement that says they both agree that it is in the best interest of the children to spend time with a parent, rather then a third party. So at the beginning of the separation--the kids were supposed to be with him, while she worked (he was unemployed at the time) But she refused to allow him to have the kids, while she worked. She told him that she didn't want to lose her babysitter. (and she never did ask him for babysitting costs for that---but by their agreement/she would be solely responsible for those costs in this situation)

There is no minimum time enforced/mentioned at all in the agreement.
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Old 10-27-2011, 07:57 AM
Femme Femme is offline
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Quote:
Originally Posted by beebie View Post
Why doesn't he change his parenting time?
If he has to change his parenting time, it means he will have even less time with his children---which has already been happening because of her refusing to drop them off(Him having to pick them up himself Saturday morning instead of getting them Friday). So it may be possible that he has to change his parenting time to reflect what has been going on, since she refuses to drive them to his house.

His access in the agreement has always been every other weekend fri 6pm-sun 6pm (there have been many times where he has taken them every weekend)

He used to be on midnight shift--which meant he didn't work fridays--so he was doing 100% of the driving--picking the kids up and returning them. (but it doesn't state he has to do 100% of the driving in their agreement--the agreement says nothing about who is responsible for pick up/drop off times---simply says he will have access every other fri-6pm-sun6pm

Recently his employment switched him back on afternoon shift 3pm-11pm---which means he has to work until 11pm on the fridays. (He had this shift in the past and she insisted on him going to her house after 11pm to get the kids on those friday nights---40 min drive both ways--he wasn't getting back to his house with the kids until close to 1am---the kids were 2 and 6 at the time---they are 3 and 7 now)

He knows that is not safe and an inappropriate time to be driving the kids at....which is why he's refusing to do it for her this time. She expects everything out of convenience for her/just doesn't want to drive. And she only works straight days 7am-3pm mon-fri now.....so there is no reason why she can't do it.
In the past her shifts switched back and forth every two weeks--she was 7am-3pm for a couple weeks and then 3pm-11pm for a couple weeks

So she should understand his situation more then anyone---she did that for years, it's only recent that she got straight days and only recent that he got put on the 3pm-11pm shift.
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Old 10-27-2011, 08:53 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by Femme View Post
There is a section in their agreement that says they both agree that it is in the best interest of the children to spend time with a parent, rather then a third party. So at the beginning of the separation--the kids were supposed to be with him, while she worked (he was unemployed at the time) But she refused to allow him to have the kids, while she worked. She told him that she didn't want to lose her babysitter. (and she never did ask him for babysitting costs for that---but by their agreement/she would be solely responsible for those costs in this situation)

There is no minimum time enforced/mentioned at all in the agreement.
So it sounds like there is a form of ROFR in the agreement, meaning she is entitled to the kids when he is unable to look after them.

Yes, she should be recipricating, but chances are you are dealing with a woman with the Golden Uterus and the rules only apply to your friend.

It sucks that he got the worst shift possible for his relationship with his kids. If he can swing it, I would be looking to see if work can change me back, not opening up a legal battle with the ex. At worst, I would do my best to be there for the drop off (use my lunch or something) get the kids go from there. Or, if he has relatives close (like his parents) see if she is willing to allow them to watch the kids, much as she allows her parents.

If all else fails, request mediation on the subject to have a minimum time period of like 6-8 hours required before the ROFR becomes effective or remove it entirely.
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