What do you think of "Right of First Refusal"? - Page 2 - Mothering Forums

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Old 05-25-2010, 02:23 PM - Thread Starter
 
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Originally Posted by Jeannine View Post
...The child's chance to be parented - by either one of his parents - always takes priority over other forms of childcare? (In which case, the NCP can walk into daycare and pick up the child even if the CP is hostile toward this...
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Originally Posted by greenemami View Post
...my understanding of ROFR is not that the other parent can just pick the child up from anothe caregiver whenever they want, but that the parent in custody of the child at the time they need alternate care must offer that time to the other parent. So, the CP would have to offer the NCP the time the child would otherwise be at daycare, and the NCP would either accept or decline. Once they decline, I wouldn't think they could just randomly pick up the child without the CPs consent...
You're right, the way ROFR is usually written puts the impetus on the parent the child is with, to offer extra time to the other parent before making other childcare arrangements.

The clear spirit of the rule is that both parents must make the effort to communicate. Parent A should not hire a sitter without 1st seeing if Parent B would like that extra time with their child. But of course if Parent B takes Wed. off and wants to pick up their child from daycare and take her out to lunch and to the Zoo, Parent B must tell Parent A and arrange to get the child to Parent A at the time Parent A would otherwise pick up the child from daycare.

A parent who ignores the rule by hiring sitters without ever offering the time to the other parent would theoretically face some sanction from the court. But a parent who abuses the rule by saying, "No, I can't watch Johnny Sat. night," and then showing up while the other parent's on a date and taking Johnny from the sitter anyway could lose the ROFR. So - ideally - there are checks and balances.

What I was explaining is that my husband's ex seemed to test every potential loophole in our state's custodial law and this issue was an interesting one:

When Parent A willfully refuses to comply with a court order for ROFR, is she permitted to get away with it, because Parent B can't pick up the child from Parent A's childcare arrangements without Parent A's permission? Or does the rule take priority? In other words, should Parent B be permitted to pick up the child from daycare even if Parent A said he can't, because Parent A isn't legally allowed to demand the child stay in daycare, if the other parent wants to care for the child? (Parent B would still be obligated to tell Parent A: "I WILL pick up Johnny at 4. Since you usually pick him up from daycare at 6, I will be home by 6 and you may pick him up there.")

In my husband's case, the court decided the rule does take priority. That makes the most sense to me. But certainly, another court might rule otherwise. I think it's interesting how varied all of your opinions are, on the subject - and it seems like everyone has a solid reason for their position. This is but one of the fascinating things I've noticed about family law, since stumbling into my husband and his Hydra-like divorce!

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Old 05-25-2010, 03:14 PM - Thread Starter
 
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Originally Posted by ProtoLawyer View Post
...I am a fan of *reasonable* ROFR clauses.

(Note: This is not legal advice.)

"Time" = I don't think the other parent should need to be notified and asked if they want parenting time in a situation where, for instance, the CP needs to run to the drugstore or the emergency vet or wherever at 3 a.m. and the child is left with the stepparent, grandparent, or other responsible adult already in the house...

"What constitutes child care" = I have seen parents fight each other in mediation over a sleepover party...because Dad wanted to claim that a sleepover party constituted "child care"...I think we can all agree that a ROFR clause should not interfere with a child's social life.
I totally agree.

Although it's not in writing, the standard of practice here is:

* A one-time childcare arrangement of less than 2 hours doesn't apply.
* Any family member who lives in the house with the child is not considered a childcare provider.

These things are meant to prevent the kinds of abuses ProtoLawyer referred to in her post. But of course they open up other cans of worms, for anyone eager to test the limits:
* Technically, if my husband were an ass, his ex-wife could fly here from California to visit their son (who lives with us) and my husband could go out of town all week and leave my step-son with me, as long as I gave his ex an amount of parenting time that we could convince a judge was "liberal".
* If the CP lives with her BF - or a lesbian partner - for 5 years, the NCP could still argue that person's not a "family member". Whereas, if the CP marries some guy she met last weekend in Vegas, he would be.
* The CP could let her Mom care for her child 60 hours/week while she works - without offering any of that time to her ex-husband - as long as Mom lives with her.
* This still doesn't help, with playdates or visits to Grandma's or errand-running that lasts longer than 2 hours, as such things often do.

Even the most carefully-worded laws can't save us from completely unreasonable people.

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Old 05-25-2010, 08:27 PM
 
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Originally Posted by ProtoLawyer View Post
Jumping in from a blended situation (where we do not have a ROFR clause because of physical distance) I am a fan of *reasonable* ROFR clauses.

(Note: This is not legal advice.)

What do I mean by "reasonable?" Reasonable in terms of time and what constitutes "child care."

"Time" = I don't think the other parent should need to be notified and asked if they want parenting time in a situation where, for instance, the CP needs to run to the drugstore or the emergency vet or wherever at 3 a.m. and the child is left with the stepparent, grandparent, or other responsible adult already in the house. (No, most people don't want a phone call at 3 a.m., but nobody should be able to use this as ammo, either.)

Some ROFR clauses I've seen have an hour or two-hour minimum--if the parent will need alternate care for more than an hour, then ROFR kicks in. I like those because that avoids fights over scenarios like car breakdowns or quick errands.

"What constitutes child care" = I have seen parents fight each other in mediation over a sleepover party. Not because either parent objects to their kids attending sleepovers, but because Dad wanted to claim that a sleepover party constituted "child care" (because, he'd heard, Mom had social plans during the party) and he should have been given the right to take the child instead (even though the sleepover party was entirely during Mom's time). If I was getting an ROFR clause, I would clarify that playing with friends, outings with family, parties, soccer games, and other social-life things do not qualify as "child care." Even if your family does not do sleepover parties or drop-off playdates, I think we can all agree that a ROFR clause should not interfere with a child's social life.
Yup. I'll just say I agree with all of this. And it's pretty much word for word what our ROFR states.

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Old 05-25-2010, 09:01 PM
 
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I think ROFR is reasonable, but also needs to be applied reasonably to each individual situation. We don't have it because of the distance involved. BUT... I do think it could be worked into our situation quite easily.

If I were to want to go away for a weekend without the kids (when they were younger - at 16 & 18, I would actually leave them on their own), it would make sense to me to offer Dad that time. Either as an extra weekend or to switch existing weekends. And that's something I've done.

Conversely, if he couldn't spend his time with the kids, it would make sense to me for him to offer/request a switch. (I wouldn't expect him to simply give up a weekend.) It certainly doesn't make sense to me for our kids to spend a weekend with their stepsib's Dad while their Dad and stepmom went away.

At the end of the day, it requires reasonable adults.
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Old 05-29-2010, 08:23 AM
 
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The details of each situation definitely get complicated, but overall the concept that a child is better off with one parent or another (as long as there is no abuse involved) over a 3rd party, when possible, is one I agree with.

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Old 06-01-2010, 01:51 AM
 
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Yes, I agree, at the end of the day it requires reasonable parents. That one factor would not allow this situation to work with my ex. However, I think about the benefits. For example, my dd is often left at her friends house after he goes to church with her, while he goes home to spend the afternoon alone or whatever, and meanwhile she could have been with me. I'm not saying she shouldn't have time with her friend, but a hour or two would be fine..if he needs extended childcare, he should offer them to me first...but he never does. He refuses to camp with my son because my dd would have to come to my house (with Scouts they do primitive camping) and he doesn't want her to have any time with me at all, than I already have with her normally.

He has no family in the area, but I do...my entire family. My kids miss many family functions, graduations, birthdays, funerals ect because his dad doesn't want to give up any time. It feels like he is trying to cut my children off from me and my family so that they have no memory or experience with us, and will bond more to him.

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Old 06-08-2010, 02:50 AM
 
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I thought it was great. I makes since for my ex to have to contact me. he only has them a few days a week but was inclined to drop them off with his mom. a lot. why should she have them when I want them? however he uses it as a way to get my work schedule, keep up with my social calader etc. (he has control issues) So I literally stopped leaving my house socially, dropped hours at work (because it just wasn't worth $50 a week to have to arrange daycare through that many people for a few extra minutes each day but if I didn't contact him about picking them up after school he got all pissy. his mom lived a few blocks from school. he barely had enough time to pick them up and get them back to his house so I could pick them up after work which prolonged an already long day) Anyway, praise God, I have a job with a regular schedule that does not require much child care. but really, there came a point where even working was so complicated by this that i just didn't care much if they hung out with his mom or his (former) mistress. Its not like i can save the kids from any of them.

and when it comes right down to it I know if he needs a sitter he schedules that for a time he knows I cannot take them. And I am more likely to get a sitter and go out when I know he cannot take them and I can get them care that is easy and private.

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