What is right of first refusal - Mothering Forums

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Old 03-22-2009, 08:25 PM - Thread Starter
 
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Hey everybody-
I am newly separated- we're meeting with a mediator on Friday- my XH keeps talking about 50/50 custody- but he works in the film industry and when he works he is frequently working 16 hour days 6 days a week. We have a 2 year old (who is still nursing) and a 4 year old- He has never spent more than 4 hours alone with the girls- When we talked about this he responded that he could use the babysitter I use when I'm school 2X a week when it is his days- I am so fiercely against this- I've read in a few posts the mention of right of first refusal- does this mean that only x percentage of time the girls are with him can be covered by a caregiver besides him?
I am hoping that he will allow me to move out of state 90 miles away so I can be near my family for support and financial stability until I finish school. Anyone have any experience with trying to leave state?
Thanks-
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Old 03-22-2009, 08:39 PM
 
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I left NY state, but my circumstances were totally different than yours and I still got pulled back for court. They decided that jurisdiction belonged to NY and that is where the case is being heard.

If you ask for a move away, that's something different than what I did (which was to basically just leave and file for custody in the second state).

The right of first refusal means that if the kids are on his time and he's going to have a sitter, he has to call and ask you first if you want to take the kids back. At least, that's how I understand it. We do not have this clause, so I'm not up on all the details.

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Old 03-22-2009, 09:04 PM
 
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What a "right of first refusal" clause does (and keep in mind you can have your attorney craft it however you like, so these are just basic guidelines) is say that if for any reason one parent can't care for the children during "their time," the other parent needs to be offered the opportunity to step in before a third-party caregiver could be brought in.

When exes get along and live nearby, "right of first refusal" usually works out well with or without a formal clause--after all, most parents welcome the opportunity to spend more time with their kids (and they do also have the right to say no to the extra time if they have a conflict). Plus, it saves the other parent money on a sitter. People who get along tend to be reasonable and understand that the spirit of "right of first refusal" doesn't mean that Grandma can't take the kids out to a movie.

It's when there's animosity that those clauses can be problematic. Parents end up ignoring the clause completely, or taking their ex-spouse back to court because the ex dropped the kids off at a birthday party, or wanting to enforce the clause for a 15-minute trip to the store while the stepparent or older sibling is right there.

As for leaving the state, I only have experience on the refusal side, but 90 miles isn't that far (we're 70 miles from my stepdaughter's mother and we see my SD every week), and if you can show your motives are reasonable, you are willing to help your kids maintain a relationship with their dad, and so forth, you will be in a better position to get court approval than, say, moving 1,000 miles into the home of an alcoholic and a convicted sex offender (as in the refusal case I'm familiar with).

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Old 03-22-2009, 09:27 PM - Thread Starter
 
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Thank You!! I totally understand now
I would still prefer sole physical custody with visitation- as I think the girls are too young to shuttle back and forth- but this is good to know about.
Believe me I have thought about just up and moving back to Pennsylvania- I don't work, I'm a p/t student- f/t mama- but it would most likely complicate things even bigger.
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Old 03-22-2009, 10:04 PM
 
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Depending on your situation, remember that right of first refusal goes both ways. I'd have to let him watch the children if I was unavailable. In my case, this would be a terrible idea because he'd then try to take me to court to get more parenting time or joint physical custody. It totally depends on your situation and only you can know if it'd be good for you or not.

From what you said though, it might work out for you.

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Old 03-22-2009, 10:19 PM
 
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Right of First Refusal means that if you aren't available to care for the kids, you have to ask their father before gettinga babysitter and vice versa.

Personally, I would fight the 50/50 physical, with a work schedule like what your stbx has, it just isn't practical. And 90 miles is too far away for 50/50 anyway. BTW, considering that he's asking for 50/50, the chances of him agreeing to you moving the kids 90 miles away are not very good.
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Old 03-23-2009, 01:21 AM
 
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It sounds like he's fighting for his possessions now instead of looking at DDs at people who have a definite need for their mom and have not spent much time with their dad. This is not atypical for many of us. :
As far as moving 90 miles, it sounds like he is going to fight you on this so be very careful. I'd contact attorneys in Brooklyn as well as the area of PA you want to move to. Get as much info as you can before making any moves (decisions).
And as some PPs have said, 'right of first refusal' can be crafted in various ways. For my custody agreement, it is only being written as overnights -- I may have to revisit this...
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Old 03-23-2009, 03:24 AM
 
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Quote:
Originally Posted by grass67hopper View Post
For my custody agreement, it is only being written as overnights -- I may have to revisit this...
What do you mean by this? Does your agreement specify that right of first refusal only applies if the parent wants the kids to spend the night elsewhere? Or am I reading that wrong?

Is this not working for you the way it is written now?
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Old 03-23-2009, 05:46 AM
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pmama, divorce laws in NY and PA are very different, so please study up before you make any decisions and see which state's laws & norms are likely to be more advantageous to you.
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Old 03-23-2009, 11:17 AM - Thread Starter
 
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Originally Posted by ginger_rodgers View Post
pmama, divorce laws in NY and PA are very different, so please study up before you make any decisions and see which state's laws & norms are likely to be more advantageous to you.
Could I just leave and try to file custody-divorce in Pennsylvania? I have half of my paperwork in PA- a registered voter there car insurance etc... but we were married in NY- and our lives were mostly here. Or would that not work-
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Old 03-23-2009, 12:35 PM
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Again, pmama, you have to check and see what PA's laws are for establishing residence. And in any case I wouldn't take off to another state without clearing it on paper with your stbx -- if it looks like you just ran away with the kids, you could wind up in real trouble custodywise down the line.
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