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What happens when you can't agree?

post #1 of 56
Thread Starter 

Just wondering what happens if parents can't agree on something that is not stipulated in the divorce decree. I realize you would eventually go to mediation, but this is about custody during winter break, so I doubt we'd get a mediator in time. The decree only specifics certain days (Christmas day, Easter day, 4th of July, etc.) not the week they get off of school for winter and spring break. The ex is taking the kids for 3 days for vacation as well as she gets them from 8pm on Christmas Eve to the 26th (time is not specified). We are only asking to have them two days (morning of the 26th to the morning of the 28th when they are leaving for vacation) and she refuses. She says we have to follow the regular schedule, but that schedule shows the kids in school during the day and she seems to think that means they stay with her. I don't know what we can do legally if she just refuses to let us have them. If she does that, we only get about 6 waking hours with them during the entire week and she gets them the rest of the time. The decree does specify that the time spent during holidays has to be fair and equitable. If we keep the kids those days can she call the police? In the past I think she has just given the kids to their dad most evenings during the break and kept them during to day, but because she is taking them on vacation, that gives us no time with them. We've sent her a very detailed proposed schedule that charts the waking and asleep hours with each parents during the break (and shows she still gets more time with them) and asked her what changes she would like to see, but also keep in mind the time needs to be fair to each parent. She flat our refuses to do so stating she will pick the kids up every morning at 8am like the decree states (it actually states Dad gets the kids from 7am to 8am and then they are at school all day or with a mutually agreed upon babysitter which would be dad's parents or with a parent). We don't want to cause drama for the kids, but we don't want to keep letting the ex "win" and get more and more time with the kids and dad less. The custody is supposed to be 50/50.

post #2 of 56

She could call the cops. But there is really nothing the police could do if you kept the kids with you guys. If it isn't stipulated in the agreement, then she has no grounds to take them away. I would call my lawyer though and ask for advice. This is ridiculous. If she really wants to fit about the smallest detail, tell her it's a go. She bullies you guys too much. And the time is not really 50/50 that will be blatantly apparent to a judge. But I have your BF call the original lawyer used in the custody agreement or a mediator tomorrow morning. It's the holidays, I'm sure they get quite a bit of calls that deal with custody around this time of year. They will know what you can and cannot legally do. And consults are free!

post #3 of 56
Thread Starter 

Well, we mentioned hiring a mediator and she has backed down slightly. I have begged my BF to call the lawyer he used for the divorce but he thinks the lawyer won't even talk to him without a $3000 retainer. Do you think if we called the lawyer (or even a mediator) about the Christmas break thing they'd talk to him about it, or would they want the retainer first?

 

As for backing down...she has said we can have the kids the days we want for Christmas break, BUT she would like to extend the right of first refusal to anytime the kids can't be with dad (or mom), not just for overnights as it is now. So if my BF can't take off the whole day of work on the 27th, he has to give the kids to her (that is what she wants) instead of leaving them with me. And this will extend to other times too, like if he doesn't take one kid to karate, he has to let her take that kid instead of just leaving them home with me for the hour of karate, etc...she is trying to force him to agree to something that will mean I can never be alone with the kids without her permission. He is going to tell her know, but we know it will make her very angry because she feels she is being "fair" and "flexible" and he is not. I think talking to a lawyer at this point is a great idea, but a $3000 retainer right now for us is nearly impossible :(

 

It's so sad. These kids are so turned around with the regular schedule that they never know whose house they are sleeping at. Tonight, the 6yo could not remember where he slept last night because they get bounced around so much :( It's only for a week, but we really wanted to created 2 whole days where we could spend that time with just the kids, in one house. They almost never experience that at dad's the way she has the schedule. :(
 

Quote:
Originally Posted by csekywithlove View Post

She could call the cops. But there is really nothing the police could do if you kept the kids with you guys. If it isn't stipulated in the agreement, then she has no grounds to take them away. I would call my lawyer though and ask for advice. This is ridiculous. If she really wants to fit about the smallest detail, tell her it's a go. She bullies you guys too much. And the time is not really 50/50 that will be blatantly apparent to a judge. But I have your BF call the original lawyer used in the custody agreement or a mediator tomorrow morning. It's the holidays, I'm sure they get quite a bit of calls that deal with custody around this time of year. They will know what you can and cannot legally do. And consults are free!



 

post #4 of 56

You really shouldn't have to pay a retainer, the only way that would happen is if your BF decided that a motion for change of the custody agreement would need to happen. As far as the ROFR, it would have to infringe on her schedule at some point. Does she really want your BF questioning everyone who watches the children but him? Also, does she not have a BF or DH? I would call the lawyer for sure and see where that gets you. And the only way she will know that he called is if he tells her, so I would do it!

 

post #5 of 56
Thread Starter 


Okay, I will have him call tomorrow. She rarely has babysitters from what we know...maybe 3 times in the last six months? It's rare and she leaves them home alone sometimes if it's just for an hour or two. Even if she does hire a sitter, she wouldn't tell us and the kids seem scared to say anything about what goes on at mom's house. She also gets upset if she feels we are "grilling" the kids for info, so we're afraid to ask too much plus we don't want to put the kids in the middle. She doesn't have a BF or a DH as far as we know, but the kids tell us about some guys who "sleeps over" occasionally. She never lets my BF know about anyone who is spending time with the kids (but I did make him tell her about me as soon as we knew it was serious and I'd be moving in. She didn't seem to care at that time)

Quote:
Originally Posted by csekywithlove View Post

You really shouldn't have to pay a retainer, the only way that would happen is if your BF decided that a motion for change of the custody agreement would need to happen. As far as the ROFR, it would have to infringe on her schedule at some point. Does she really want your BF questioning everyone who watches the children but him? Also, does she not have a BF or DH? I would call the lawyer for sure and see where that gets you. And the only way she will know that he called is if he tells her, so I would do it!

 



 

post #6 of 56

She is their mother, you are the girlfriend, she should have priority over you. Get used to it.

Kids do get turned around with 50/50 custody. It's terrible for the children, completely unfair to them, but they don't really have rights anyway.

post #7 of 56

See it's a double standard. "Who's watching the kids when you're at work?" Then in the same conversation, "It's none of your business who is in my house." I have had these conversations with DSS's BM a million times. DH and I just tell her "Ok, fine. You can argue with yourself but you aren't going to argue with us. Contact us in 24 hours when you have calmed down." The last time she threatened visitation we told her about the child psychologist DSS had to see after she had him the last time and that he was willing to testify if need be. She backed down immediately.

 

It's not about being argumentative but she needs to realize that HE is their parent TOO. Sounds to me like there is some serious resentment, anger, jealously issues going on. Which is to an extent normal. But she is getting crazy with it. To not allow her children 2 days with their father when they are on break is cruel.

post #8 of 56
Thread Starter 

Nice, so kids get treated like  crap and unfairly because they don't have rights and that's okay? She has the kids when she's supposed to and for the time legally stipulated in the divorce decree. My BF doesn't want to take any of that way, he just wants HIS kids in HIS home when they should be and for the correct amount of time. 50/50 does not mean she gets them in her home 80% of the time because he's at work. The divorce decree specifies creating environments for the kids that is less stressful...bouncing them around to different houses each night so they don't even remember where they slept the night before is not a "less stressful" environment.
 

Quote:
Originally Posted by jess in hawaii View Post

She is their mother, you are the girlfriend, she should have priority over you. Get used to it.

Kids do get turned around with 50/50 custody. It's terrible for the children, completely unfair to them, but they don't really have rights anyway.



 

post #9 of 56

I hear what you're saying, but having lived the other side, I know what it's like to have an ex whose new partner thinks she has some right and privilege just because she hooked up with a dad. If the mother (please refrain from using BM, it's really insulting) feels it necessary to insist on keeping the only schedule they have in a court order, chances are there is a very good reason. She is not demanding more, she is saying "this is all we have to go on, this is what we have to do right now". I totally get that. I have had to hold my ex to the letter of our orders because he abuses and exploits any loophole he can. I have a feeling this mother is just protecting her side of the agreement, which is what she should do. If she doesn't have anyone else in her life, her life completely revolves around her children, unlike her ex, who has put his energy into another relationship. It is reasonable to be concerned about who your children are with. My ex exposed my kids to all kinds of inappropriateness. It sounds like there is a lot of judgement about the mother acting the way most mothers act in a similar situation. She probably feels defensive and guarded with good reason.

post #10 of 56

50/50 means with him, not his girlfriend. If he isn't available for that, why should the mother lose out?

 

ETA p.s. I was being facetious about the kids. Unfortunately, the courts are currently more concerned with "dads' rights" than what is in the best interest of the children.

post #11 of 56
Quote:
Originally Posted by jess in hawaii View Post

I hear what you're saying, but having lived the other side, I know what it's like to have an ex whose new partner thinks she has some right and privilege just because she hooked up with a dad. If the mother (please refrain from using BM, it's really insulting) feels it necessary to insist on keeping the only schedule they have in a court order, chances are there is a very good reason. She is not demanding more, she is saying "this is all we have to go on, this is what we have to do right now". I totally get that. I have had to hold my ex to the letter of our orders because he abuses and exploits any loophole he can. I have a feeling this mother is just protecting her side of the agreement, which is what she should do. If she doesn't have anyone else in her life, her life completely revolves around her children, unlike her ex, who has put his energy into another relationship. It is reasonable to be concerned about who your children are with. My ex exposed my kids to all kinds of inappropriateness. It sounds like there is a lot of judgement about the mother acting the way most mothers act in a similar situation. She probably feels defensive and guarded with good reason.



I use BM because in my case DH and DSS's mother were never married and she has never had anymore than joint custody of him. She also didn't pay her child support ($60/month) until the judge put a contempt order on the books and she never calls on birthdays, holidays, anything to check on DSS. He literally doesn't know who she is and hasn't seen her in over a year. She is in my opinion an egg donor. I am not trying to offend you in anyway, Jess. I simply never want DSS to think that just because his birth mom chose to ignore him that he didn't have a mother. 

 

And I do get what you are saying about their mother protecting her side of the agreement but from what Pixiealley is saying it's not so much about keeping to the custody agreement and allowing a fair time for both parents to parent their kids. 

 

My DH was in a situation where he loved his son and knew that he had to fight for him. He did with me alongside him. We were expected to get residential custody and did, while the judge told her if she said one more word, she would get 30 days for contempt. I respect that you have been on the other side of this argument and I agree that the mom is doing what a 'mom' should do. But I think if he is a good father, don't punish the kids because he has a girlfriend who obviously is willing to co-parent and be good to your children. If Pixie didn't want to be involved in the kids lives and thought they were just BF's responsibility, that would be horrible IMO. At least she is trying to be a positive influence.

post #12 of 56

Ha! you dss's mother sounds like my boys' father! We all have different and similar situations. And we can't know both sides just from one person's post. One would hope that the children's needs can be lovingly attended by all the adults involved, but sadly this doesn't often happen. Everyone wants to think they are doing the right thing, but I find it rare that each parent puts away their ego and does what is best for the kids.

post #13 of 56

I really think you will need a lawyer to look at the custody agreement. If he already has a lawyer from before, he should be able to pay just for the time he uses his/her services to consult about the schedule and discuss his legal options. A retainer is an estimated up-front payment (or substantial partial payment) for work that the lawyer knows they are going to need to do. They aren't going to charge a $3000 retainer if there isn't work for them beyond a consultation about interpreting a custody agreement. 

 

He and his ex CAN go to mediation and come to am agreement to supplement their current agreement. Depending on the situation and the state, it might be enough to just have a written agreement or it might need to be officially filed with the court. We worked with mediators who had the knowledge and resources to file something legal with the court without needing to actually go to court. In our situation both parents have agreed to changes or clarifications in writing and that has been enough for both of them to abide by them. BUT we also worked hard with our lawyer to spell out EVERYTHING in detail because of the co-parent we were dealing with, AND we operated under a temporary agreement for the first year in order to iron out any difficulties before filing a final agreement with the court. So there is not much left in there that could be open to interpretation. The custody agreement should be the document that provides the bottom-line clarity for disagreements, and should be something you can default to if you don't agree. It doesn't sound like that is the case for your boyfriend and his ex, so it certainly wouldn't be the worst idea to renegotiate the agreement and provide clarity so everyone knows what to expect and it can better meet the needs of the kids and the parents.   

 

As for a change to the ROFR, if it is written in the custody agreement that it only applies to overnights, that's potentially a very reasonable place for your boyfriend to start standing up for his rights. If he isn't obligated to abide by ROFR at any other time, he can simply not do that. She can tell him that's what she wants him to do, but if she's asking for a change to their agreement it is up to him to agree to it. She doesn't just get to decide that she wants something different... if it's in the agreement, it's in the agreement until they agree to something else (or a judge says otherwise). 

 

I feel like I should say that I don't know what the agreement says, so I'm not giving advice on what to do. I'm speaking just from my own experience dealing with a mom who felt, for a long time, that she could just decide what everyone else was going to do and didn't consider dad an equal parent or legitimate decision-maker. IT was really hard to make that change-- you can't control what someone else does, you can only control what you do... When my husband had had enough and decided he was ready for something to change, the first step was to change his own behavior. To do that, he needed to truly believe that he was an equal parent, with equal rights and responsibilities to his child.

post #14 of 56
Thread Starter 
Quote:
Originally Posted by jess in hawaii View Post

I hear what you're saying, but having lived the other side, I know what it's like to have an ex whose new partner thinks she has some right and privilege just because she hooked up with a dad. If the mother (please refrain from using BM, it's really insulting) feels it necessary to insist on keeping the only schedule they have in a court order, chances are there is a very good reason. She is not demanding more, she is saying "this is all we have to go on, this is what we have to do right now". I totally get that. I have had to hold my ex to the letter of our orders because he abuses and exploits any loophole he can. I have a feeling this mother is just protecting her side of the agreement, which is what she should do. If she doesn't have anyone else in her life, her life completely revolves around her children, unlike her ex, who has put his energy into another relationship. It is reasonable to be concerned about who your children are with. My ex exposed my kids to all kinds of inappropriateness. It sounds like there is a lot of judgement about the mother acting the way most mothers act in a similar situation. She probably feels defensive and guarded with good reason.


I don't think I've ever referred to her as the BM, so I am not sure why you're addressing me about it. I usually just say she's the ex or my BF's ex or their mom. She is saying that the time the kids are usually in school is HER time. It does not state that anywhere in the divorce decree and logic would tell you that if you have 50/50 custody, then at least half that time should go to the dad. We are not asking for anything more than what he is entitled to legally. She is the one who abuses loopholes, not us. Her side of the agreement is not "Mom gets the kids when they are supposed to be in school during breaks" and my BF is trying to protect HIS right to see his kids 50% of the time and to attempt to protect them for stressful situations. She does have someone in her life, a sleepover buddy according to the kids, who we are not allowed to know anything about, but somehow she has a right to know about me, when I'll be there, when I'm watching the kids, etc..? If he asks about who the kids are spending time with he is told it is none of his business or she just completely ignores the question.

 

post #15 of 56
Thread Starter 

Not in this county. She was favored and get the exact schedule she wanted. He tried to propose something that would still give them 50/50 but wouldn't bounce the kids around and the judge said no. Hawaii is a lot different than podunk-town, Wisconsin.
 

Quote:
Originally Posted by jess in hawaii View Post

50/50 means with him, not his girlfriend. If he isn't available for that, why should the mother lose out?

 

ETA p.s. I was being facetious about the kids. Unfortunately, the courts are currently more concerned with "dads' rights" than what is in the best interest of the children.



 

post #16 of 56

If the agreement doesn't specify anything on vacations besides that it should be divided equitably, and you guys don't like her schedule, then your boyfriend is going to have to steel himself to stand up to her about it. One way to do that is to propose your own schedule... we never actually get what my husband actually asks for because his ex needs to be the one to control the situation, but usually she just comes back with some modified version of the same plan or they go back and forth arguing about it for a while before she goes back to what he originally asked for but in a way that makes it sound like it was her idea. The other way is to give her the parameters and ask her to come up with a reasonable schedule... So maybe he says "the agreement says the time they are on vacation will be shared equitably. That means that the time they would normally be in school needs to be divided equally. I don't care how it is divided, but the time they would normally be in school needs to be divided between us. Let me know which days and times you would like them with you." My husband usually adds something (so it is in writing) about what he would like to see (I would prefer to minimize the number of times they go back and forth because I know that is hard for them), but sometimes that just serves to make her do the opposite.

 

Maybe look at their entire break, take out the five days of official vacation for her (and the official vacation for you if that's what you are using in January) and then look at the remaining days they would have been in school and divide those between the two houses. I know the ideal would be to have those two days together the way you have planned, but in the long run it may be more important for your husband to stand up for overall equity at the expense of having your time broken up a bit. If he argues with her about it and then ends up just giving in, she has discovered that she's just going to have to hold out longer now but that eventually she will get what she wants. And it sounds like she is looking for the weak spots and thinks she has found it with saying that the kids must be with a parent the whole time. If your husband comes up with a consistent response, "Right of First Refusal doesn't apply during the day. What I do with my parenting time is my business" it might be easier to keep from getting involved in an argument about it and keep the two issues separate (ie not negotiate one thing for the other). Essentially she is saying "If you want time at Christmas, you need to agree to a change in the custody agreement." Personally, I wouldn't sacrifice something like that for the short-term trade-off of this week's Christmas schedule... it's two days at Christmas in exchange for 10-12+ years of a pretty ridiculous interpretation of ROFR. In my book, it's just not worth it.

post #17 of 56
Thread Starter 

Ugh, this whole situation is completely out of control at this point. Seriously, all this started out is is asking for 4 days out of 10 during winter break (2 of those days are stipulated as his in the divorce decree due to the Christmas holiday). He proposed a schedule expecting her to send back a modified one and asked her to just make sure it is equitable. She so far has refused to do so and in the latest email from her, she has completely changed what she originally proposed! I suggested he just resubmit his proposal, with modifications of things she's asked for, and tell her that is what he is willing to agree to and if she won't, they will have to take it to mediation. Her last email was all about how sad she was to be away from the kids and how he is just doing all this to be vindictive and keep the kids away from her. How is wanting the kids 40% of the time in a 50/50 custody situation trying to keep the kids away from her?!?! He doesn't want to take the kids away from her at all. He knows it is important they have a relationship with their mom. He just wants his fair time with them. He loves them and misses them too and can't understand why her love and desire to be with the kids is more important than his.

 

He did send her a detailed breakdown of the time, excluding her vacation as her time with the kids, and she still came out having the kids more with his plan. She refuses to even acknowledge that. And we are definitely not changing the ROFR stuff. He flat out told her that, which is why she came back with a completely different proposal. This is supposed to just be about Christmas break, but she has made it about all breaks, sick days, snow days, doctor appointments, etc...I think he needs to just go back to the beginning and ask her to resolve only the Christmas break issue first and we'll go back to the other stuff after that. She told him a fair way to deal with breaks, snow days, snow delays, sick days, etc...would be wherever the kids are sleeping that night is where they will stay during the day. We thought, okay, fine, that sounds fair because it would just work out equitably in the long run, although most teacher conference days and half days tend to be on her days at the end of the week. We decided that didn't matter and let her know that her idea was acceptable (minus the ROFR stuff). Her latest email now states that she gets the kids for all snow DAYS and we get the kids for all snow DELAYS. Her reasoning is she will miss snow days with the kids too much. Well, that's understandable, but she would still get snow days with the kids if it lands on her day and why is her desire to have snow days with the kids more important then my BF's desire to spend snow days with the kid? On top of that, in the past, she has never once come and gotten the kids for a snow delay, even though he has asked her. He always had to take off of work. She also refused to take them for about 50% of the snow days that occurred over the past two years or she would tell him she  was busy and couldn't get the kids until later in the day, which was pointless since he'd have to take most of the day off of work anyway. But if she wants snow days now, that is fine with him. He just wants them divided equally.

 

I think he will be going into "broken record" mode now with basically, this is what I propose, if it is not acceptable or you can't provide another plan that is equitable, or we will need to go to mediation. I think we'll add "Right of First Refusal doesn't apply during the day. What I do with my parenting time is my business." :) Thanks.

Quote:
Originally Posted by aricha View Post

If the agreement doesn't specify anything on vacations besides that it should be divided equitably, and you guys don't like her schedule, then your boyfriend is going to have to steel himself to stand up to her about it. One way to do that is to propose your own schedule... we never actually get what my husband actually asks for because his ex needs to be the one to control the situation, but usually she just comes back with some modified version of the same plan or they go back and forth arguing about it for a while before she goes back to what he originally asked for but in a way that makes it sound like it was her idea. The other way is to give her the parameters and ask her to come up with a reasonable schedule... So maybe he says "the agreement says the time they are on vacation will be shared equitably. That means that the time they would normally be in school needs to be divided equally. I don't care how it is divided, but the time they would normally be in school needs to be divided between us. Let me know which days and times you would like them with you." My husband usually adds something (so it is in writing) about what he would like to see (I would prefer to minimize the number of times they go back and forth because I know that is hard for them), but sometimes that just serves to make her do the opposite.

 

Maybe look at their entire break, take out the five days of official vacation for her (and the official vacation for you if that's what you are using in January) and then look at the remaining days they would have been in school and divide those between the two houses. I know the ideal would be to have those two days together the way you have planned, but in the long run it may be more important for your husband to stand up for overall equity at the expense of having your time broken up a bit. If he argues with her about it and then ends up just giving in, she has discovered that she's just going to have to hold out longer now but that eventually she will get what she wants. And it sounds like she is looking for the weak spots and thinks she has found it with saying that the kids must be with a parent the whole time. If your husband comes up with a consistent response, "Right of First Refusal doesn't apply during the day. What I do with my parenting time is my business" it might be easier to keep from getting involved in an argument about it and keep the two issues separate (ie not negotiate one thing for the other). Essentially she is saying "If you want time at Christmas, you need to agree to a change in the custody agreement." Personally, I wouldn't sacrifice something like that for the short-term trade-off of this week's Christmas schedule... it's two days at Christmas in exchange for 10-12+ years of a pretty ridiculous interpretation of ROFR. In my book, it's just not worth it.



 

post #18 of 56

Sounds like a power struggle.  They never end.  My parents did the exact same thing.  Mom wanted this dad wanted that and just continued on for years.   YEARS!

post #19 of 56
Thread Starter 

We're both so worn out by this :( I hate playing games but it seems like that is the only way she'll compromise. I think we've decided to give her snow days and he will promise to make every effort to take time off during sick days and holidays to be with the kids, but he is still telling her he will not adjust the ROFR to include non-overnights. We also realize she picked us having the kids on snow delay days because if the kids are at her house, it will be nearly impossible for us to pick them up before school starts due to her road  being one of the last ones to be plowed :/  I think he is going to say she needs to pick them up on full snow days to equal things out. He's also going to let her know that he will have time off during the break to be with the kids so they will not be with me the whole time. She is so manipulative though. The way she worded the last email makes me almost feel sorry for her, and in a way I do, but then you look more closely and you see the cracks in her story (like saying she is sad about snow days when for the past two years so has shown very little interest in having the kids on snow days and usually made my BF take time off of work). We've been talking about expressing to her that he wants the kids to spend equal time with both parents, which is true, because that is what is best and healthiest for them, but he wants his time to be equal. And also telling her how the kids complain about being bounced around between houses so much and he is just trying to create some continuity in their lives while keeping time with parents as equal as possible. We'll see what happens or if he even sends that email. I see him getting to the giving up point :(

post #20 of 56

I'm sure that you are both worn out buy it. Situations like these are mentally and emotionally exhausting. Just make sure that he stays on track. Sounds like he is making some great strides as far as staying on point. I doubt she will stick to her end of the bargain about snow days from what you've said. You talk an awful lot about him taking off of work or leaving early during the day. Does he take off that much because she changes plans? That can't be good for his job unless he has an awesome boss and job security. ROFR is the most annoying thing. That is the biggest double standard here because I bet you BF is never allowed to ask who she has watching their children. Ugh. I'm sorry mama.hug.gif  I really hope that he can get this panned out before next week so you all can enjoy the holidays.

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