Blog

The folly of a court-ordered “right of first refusal”

The “right of first refusal”–the right to watch one’s children when the other parent would otherwise hire a sitter–is one of those concepts that sounds wonderful in theory but is a disaster in practice.  My clients sometime inquire about it; after seventeen years of family law practice, and my experience as to how these court orders operate, I encourage them not to seek it.

Separated parents who provide each other the opportunity to watch their children when they would otherwise need a sitter without the necessity of having that obligation be court-ordered don’t need a court order.  For separated parents who won’t allow the other to watch the child in such circumstances, imposing a court-ordered obligation adds anger and recriminations into what is already a volatile situation.

The problem is that almost every child ever conceived was conceived by folks who were, at one point, romantically–or at least sexually–attracted to the other[1].   Custody litigation thus involves people who were involved in a sexual/romantic relationship that has not worked out.  Even the most mature folks in this situation will have negative emotions and raw feelings.  Especially in very contentions custody cases, litigants tend not to be on the better half of such emotional maturity.   Typically there’s much anger and bitterness in these cases by one or both parents.

A court-ordered “right of first refusal” tends to be a disaster in these situations.  The obligation gets imposed when one parent is going out socially while the other parent has no set plans.  This presents an invitation to prying.  Typically, the parent exercising the right will question why the other parent is going out, with whom, and where.  The parent who’s going out will naturally resist such questioning, as it involves an ex-lover inquiring into private matters and it potentially provides fodder for a subsequent custody or visitation modification case.  This “right of first refusal” unwittingly creates a situation in which ex-lovers who cannot get along are now exposing intimate aspects of their ongoing romantic life while potentially providing information they can use against the other.  This naturally devolves into prying; this naturally devolves into the parties feeling the other is being judgmental; this naturally devolves into greater anger and negative emotions.

For separated parents who are capable of graciously allowing the other to watch their children at times they need a sitter, the gesture of such offers is wonderful and no court order is necessary.  However, where separated parents have too much negative emotion towards the other to be able to make such offers absent a court order, imposing a court-ordered obligation is insanity.
______________________________

[1]I realize that some children are conceived through rape or incest; thankfully in seventeen years of family law practice, none of my custody cases involved such a situation–at least that I am aware of.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • California observer

    Contracts–any contracts–only exist for the situation in which one party but not the other wants to terminate the arrangement. So yes, that makes first-refusal contracts problematic.

    But doesn’t it also make *marriage* contracts problematic?

    • Your point being?

      I make a living because marriage contracts are problematic. ….And also because people make babies with other people and then regret their choice in baby mama/baby daddy.

  • Greg,

    I agree with you in situations that involve short-term sitter needs, but I have seen several situations recently where the parents were happy to include in their parenting agreement a “right of first refusal” for all overnight travel.

    I think the problems come in when the “right of first refusal” clause interferes with daily or weekly routines of the parents’ post-marriage/relationship lives. Like you’ve said, it just isn’t practical for a mom to call on dad every time she needs to run errands for a couple of hours, go to class, or even go on a date. There tends to be too much room for abuse on both sides of that scenario.

    In my own practice, however, I’ve worked with several parents who are happy to include the overnight first right of refusal language. As a parent myself, it seems only natural for one parent to know when the other is leaving the children overnight (or several nights) and the reason for it.

    Plus, I’ve found most parents aren’t too crazy about having their children spend the night with a sitter (relative or not) if they are available to spend the extra time with their child. Of course, this assumes that the parents are getting along well enough that these additional custody exchanges won’t add more conflict to the situation.

    • Jenny:

      When the parent agree, they don’t need a right of first refusal. When neither parent wants the right, they don’t end up with one.

      It’s only the situations in which one wants it and the other doesn’t that the right becomes something the parties litigate. In those situations (one parent wants it; the other doesn’t), it’s a disaster when the court orders it or the parties agree to it in order to reach settlement.

      • Jim

        Hi Gregory, I’m siding with Jenny here. I find overnight right of refusals (for trips, longer vacations, etc.) great, but periods of a shorter time than one night ridiculous. I am in the position where I want one but my ex refuses. I still provide her the opportunity, without a court order, but she will not. Thinking of the child’s best interest….I always side with a watching parent. Although nobody wants to litigate this, I have for 2 specific reasons:

        1. Increased time and stability in the child (familiar safe surroundings), and;
        2. How would one feel if their child had an accident in the supervision of a friend, when you could have been watching him.

        Sometimes the benefits of litigating something like this do outweigh the risks.

        • rae

          I agree. By all accounts, the ROFR is intended to “maximize the child’s time with a parent”, usually the non-custodial one. In my case, my ex thinks that he can give his ordered possession time away for three to four days at a time. During the summer, he took his thirty days and gave them all away with the exception of one week. While I don’t mind our child spending time with family, I have a problem when our child is spending more of it with them than with the father. After all, my parenting plan is not with his family, it is with him, and if he doesn’t want to spend his ordered time with our child, then I think it’s only fair that I should be offered it first as the clause is intended to ensure. My advice to anyone, especially if they have a difficult ex, is to put a clearly defined ROFR clause in your divorce decree stating the hours (I’m asking to change ours from 4 to 12) to allow a child to spend the night with friends as they will want to as they get older, but if you exclude relatives from the clause, make sure that you define those relatives such as grandparents, aunts, etc…If you don’t and you have an ex like mine, they will manipulate the wording and the purpose of the clause itself.

  • Lisa

    I am in a disgrement with my son’s Dad about Right of First Refusal right now, and would love someone to clarify for me, him, and our 2 attorneys that do not agree on the subject. Our son is on the 2nd of a 3&1/2 week visitation with his Dad who lives in Atlanta. He lives with me in Alabama. My son’s dad arranged a weekend trip for our 10 year old and his parents to the beach for the weekend backing up to the end of his visitation. The problem I am having with this is that in our Original court order done in 2004 we do have a section that addresses Right of First Refusal. I feel as though this applies here. I am available to get our son back a few days early and his dad is going out of town during part of the weekend for an overnight. Also he is not planning to meet his parents on the trip. We did not include Grandparent visitation in either of the 2 court orders done in the past. I would not send our son on vacation with either of my parents without going with them. Does anyone know how Grandparent time out of town works with Right of First Refusal?

    • rae

      It would depend on how the Right of First Refusal clause reads in your divorce decree, but I would imagine that your ex would be in violation of it if he knew in advance that he was going to be leaving your son with his parents while he was away and not made you aware of it by giving you the option to bring your son home early. I would like to add, that though I understand first hand how frustrating it is to have an ex that doesn’t usually do things the way that I think is right, that you might want to try and look at what is in the best interest of the child, and if the Grandparents are loving ones to him, then maybe you should let occasions like this go for the sake of your son, especially if you are the custodial parent and he doesn’t see them as much. You will be the bigger and better person for it and your son will see that as he grows.

      • Betsy

        I agree if your child doesn’t get to see these grandparents often why not let him enjoy some time with them? Do you allow him time with your parents? Even if it’s not for along time the little time adds up. They don’t get to see him as often so looks like this may be some quality time with other side of family.

  • Jen H.

    Overnight Right of First Refusal is crucial in circumstances where one parent is attempting to maintain an illusion of 50% custody in order to lower child support. They are often leaving the children with neighbors, relatives, and friends when the children would rather be with the other parent. This is of course detrimental to the kids and there is no other way to address it other than RoFR.

  • Marty

    How about in cases where you are in the midst of a custody trial with a history of one parent attempting to alienate the children ? If a relationship ends, it’s over, I would hope most parents would look to just want to spend extra time with the child where the other parent does not have to ask, nor is concerned with what the others plans are. That’s me, I have had the children held back from me due to moms history of unaddressed mental issues. Some parents want to use the children as pawns to both punish and destroy bonds between the child and the other parent. If the other parent always acts responsibly and the child and the parent partake in activities that are great for the child like ball games, playgrounds, play dates, or to visit loving family members, what’s the issue ? In most cases I think it would be easy to prove your relationship and activities with the child if you kept a journal of events, supplied past photos, or letters from schools, neighbors, and family. Or maybe recent communication with the ex with issues that state what a wonderful father or mother you are, and how much the kids love being with you.

    • Nana

      Yes, if we lived in a perfect world.

  • Tam

    My exhusband and I have had this stipulation for nearly 10 years now. The stipulation is for anything over a two hour period. It has worked beautifully.

    It was originally stipulated in the court order because he was leaving our daughter with his buddies overnight (while he was presumably out partying or spending time with his new girlfriend). It’s none of my business what he does on his own time (that comes with being separated/divorced), but our daughter’s time is my business.

    At first, he was irrate at the addition of the stipulation. He felt like I was trying to control what he was doing. It took him a while to figure out that I didn’t really care about him, I was only concerned for our daughter.

    Whether he agreed with it or not, since the stipulation was added, he has always given me the option of keeping her if he’s going to be away for more than the two hour period. I have never declined and have never asked what he was doing with his time (again, that’s none of my business). Because I do this “favor” for him, he returns the “favor” when I need him too. Because I don’t ask questions, he also does not.

    This court order is intended for parents who are truly concerned about the child’s wellbeing. It is detrimental only if the parents place their own motives/initiatives/agendas over that of their children.

    Rather than talking about how worthless the right of first refusal is attorneys, mediators, judges, and the like should be educating divorcees on how important it is to put your children first and what an order like this can do when used appropriately.

    Just a quick note to Lisa’s comment on June 22, 2011: Children need to spend time with their grandparents, too.

  • Michael

    I am currently quite involved with the Right of first refusal in the state of California. My girlfriend is having a lot of trouble with her ex husband using this clause in every negative way he possibly can. We, (my girlfriend and I) try to follow the language as it appears in the orders but are met with quite a bit of resistance unless it can be used against our time with the children. I have been doing a lot of reading and still have some unanswered questions and grey areas with this subject. Is it possible for him (the non-custodial parent) to refuse to keep the children when his designated time is over, but also demand that the children be picked up by their mother (custodial parent), instead of a grandparent while the mother is out of town for one day? Is it possible for him to deny the right of first refusal and also demand that the custodial parent be there to pick them up when arrangements were attempted to be made weeks in advance? Any knowledge or experience would be appreciated. Thank you

  • rae

    I’m in Texas, but the ROFR means that the other parent must be asked if they want to keep the child first before getting a babysitter, etc…If the parent refuses, then you can then get someone else to watch the child, as long as you asked the parent that refused first. It’s important to make sure all of your girlfriend’s correspondence to the ex asking him if he wants to exercise the ROFR is done by e-mail or in writing of some kind and make sure he answers back in writing so his answer is documented. This way if he doesn’t respond, she can get the Grandmother or someone else to watch the kids instead and he can’t use it against her. As far as whom can pick up the child, it should be worded in the divorce decree. Mine says that my ex or I can send a “designated competent adult” on either of our behalf. Simply put, no it is not within reason for him to deny the right of first refusal and also demand that the custodial parent be there to pick the kids up regardless of when arrangements were attempted to be made. If his designated time is over and he is refusing to exercise his right to keep the kids, then the Grandmother or any other competent adult can pick up and keep the child in the mother’s absence. Again, I’m in Texas, but I hope the information helps. Good luck!

  • Loving Father

    I had a question, during temporary custody (texas court) we added a 4 hour rule. At the time, we were each working day shifts and we each had our children every other week, which was working great from a stability standpoint. She soon decided to quit her job and get an afternoon position. I work 7-4pm, she now works 4-midnight. What’s great is that I get to see my children everynight, however she demands that on my weeks I hand the children over to her parents at 930pm when she works until midnight. I’ve recently stated that I would start waiting for her to get out of work so the children can spend more time with me, I have no problem waiting until midnight to spend more time with my children, even if they are sleep. What are the legal ramifications of this? Our original arrangement has changed so drastically with the recent schedule change.

    • Sarah

      Why would you want to wake up your kids at midnight? This does not benefit them in any way shape or form.

  • Down a $100K Father

    I currently live in Texas, I’m the primary custodial parent, and do not have FROR. This was specifically left out of our MSA. After 15 months, my ex is taking me back to court to have it reinstated. It’s my opinion, each situation is different, but having lived through the hell of a high profile, acrimonious divorce that I fought to put our child’s life first, FROR is a selfish inclusion. I’ve read tons, and I’m not a psychologist but, particularly kids ages 9-12, 13-17, their preference should be the driving factor (at 12 kids can have some input in Texas or an Amicus is required – more money!). If there is a strained relationship between child and parent in addition to parental issues, and there is no improvement OR the child is managing as best as they can, forcing more time, creating less consistency, is counter productive and detrimental to the child. I’m even more amazed at creating a time (my case 8 hours or more, FROR). This only creates another issue to be debated and contested. Is it 8 hours from when you leave and return? Door to door? If it overlaps school, is that time included, not included? The list could go on and on and as has been mentioned, it will create prying, having to document and open up your personal life to the full disclosure of someone you’re trying to move away from. Avoid FROR and attack it like it’s the plague. If the divorce isn’t contested, it will happen naturally because the kids will welcome it, if its acrimonious, it will be a disaster and make it worse! More importantly, this assumes the child will be cooperative. IF you’ve been involved in situations where exchanges are difficult and each visitation has issues, there’s nothing better than adding more! You can only hope in these situations the relationships improve and with time this too will happen naturally. After all, why wouldn’t you want it that way? The reality is, it can’t always be but with COURT-ORDERED FROR it has to be or MORE Litigation.

    • Mark

      Wow. That stinks. I also live in Texas, and as a father am considering FoFR. Both of us are first time, un-married parents, and our daughter is almost 2 months. However the history behind us is that she cheated on me, and didn’t know who the father was during pregnancy. I forgave her, and she ended up dumping me 2 and half months into her pregnancy. I stopped speaking with her until she reached out to me a week after our daughter was born. (Got the DNA done right away) She said that she wanted me in our daughter’s life…but she only allows me to see her barely 6 hrs/week. I’ve even offered to watch our daughter for how many hours, and then drop her off at the babysitter. But she won’t even let me know who the babysitter is, much less watch her unsupervised. I don’t know of any parent that would rather spend $ on a babysitter, than to let a loving and qualified parent. FoFR seems to the only way I’ll get to spend more time with my daughter until the mother decides not to limit my time with our daughter as a way to make me pay for “abandoning her during pregnancy” – her words.

      In the meantime, I’ve gotten a lawyer, and waiting to bring my situation to court, so that time with my daughter isn’t based on her whim.

      Sorry for the late reply, I just discovered this site. I hope things between you and your ex are more amicable.

  • Christian

    Mr. Foreman,

    Your idea that right of first refusal can be problematic in certain situations is a valid one, but what about the father that has no choice but to file for right of first refusal because the mother refuses to let the father care for his child solely because of malicious intentions? I had to file for right to first refusal because other wise my sons mother would not bother to include me in his life and would much rather pay for daycare. Right of first refusal has been a huge factor in allowing me to bond with my son while we go through the custody process and while her false allegations against me can slowly subside. She has no choice but to be motivated on allowing me to spend more time with my son. I would say in my case, right to first refusal gives my son a bigger chance of bonding with his father while his mother maliciously tries to deny him a father because of the simple facts that I do not love her and cannot live with a pathological liar.

  • Kate

    My husband and his ex wife have a 4 hour ROFR. They have 50/50 custody but since she chooses to work part-time she has her schedule set so she is always available to pick up the kids after school. She lies about times she should have offered the ROFR to him (we find out from the children). She gets to see them almost every day while my husband only sees them on his weeks because he has to be responsible and work. She gets to be the fun parent on our dime, her parents dime and anyone else she can extract money from. The ROFR is subject to both parents’ honesty and desire for the children’s best interest. In our case, it only benefits the irresponsible parent.

  • lisa

    ROFR is only good for parents who both want the children to be first in their life and have no hidden agenda of their own. When one of the parents is vindictive and self centered, it hurts the consitancy of care and emotional stability of the children. It is unrealistic for judges to foce this on parents, especially when they have a non communicative and contentious relationship. If they could get along, they would not have divorced in the first place. In these situations, it only burdens the courts with furter hearings and contempt aligations. Common sense seems to be lacking when a hard line is taken which forces this on any parent who is not intrested in having it in the parent plan. The parent who follows the directions and intent of the ROFR is manipulated by those of evil intent and ultimatly, the children suffer. Keeping specific visitation guildlines keeps the peace, not the ROFR.

  • Maisie

    Hello, I am (just) a step mother to a 4 year old little girl in CA and my husband has joint legal & physical custody of her with his ex. At the beginning of this month our court order was modified as requested by his ex with FROR because of his work schedule. It is week to week part time and because she does not like me, she had requested it. We also have a 6 mo. old girl, half sister to my step daughter. Why is it that if her father is working and I am available and always with her sister, she cannot stay with us for bonding with her? Her father is actively a huge part of her life just as much if not more than her mother, but the mother insisted that she doesn’t need to spend time with me, just with her dad and sister. All FROR orders mentioned above only talk about going out socially but nothing about work or with other siblings involved. She has made several false allegations in court regarding me beating her daughter with a belt, which the court said nothing about and even her CPS calls were dismissed with no investigation. To make matters worse, in 2 months of exercising FROR, my step daughters behavior and aggression issues have worsened to the point of attacking her teachers and even choking other children nearly twice a week. She has told me she is in trouble at her mothers for calling me a special nickname she gave me when she was 3 and now pronounces each syllable carefully of my first name only. She seems very confused but we do not have the funds to get the type of analysis we need to prove that her mother is emotionally abusive to her. We always speak very highly of her mother in front of her and do not spank her on account of the fact she has emotional/behavior aggression issues as it does not help. Also, no 3rd party corporal punishment which isn’t a problem because I have never hit her. The more time she seen at her mothers, that we know of, she has become very disconnected with her actions and we aren’t sure what to do. Our FROR is not specifically detailed just a 3 hour rule. Thank you.

    • Holly

      I am in the same situation. Did you ever receive a reply regarding your post? Thanks!

  • Tresa

    I live in Texas and my husband and I are going through a very nasty divorce. We went to court and lied about me and managed to get primary temporary custody of our 5 children.
    He is refusing to let me take care of our 10 month month old while he is at work and the older children after school until he gets home. He is shuffling them around between 5 different people daily and one of which he will not tell me who it is. I need to find out if I am eligible to have “Right of First Refusal” and if so, how do I go about getting it! I have been a stay-at-home mother for 12 of our 18 years of marriage.

  • Paul Rothwell

    I would like my children(12/14) to spend time with my brother and his kids for the weekend…without me present. I want my children to be somewhat independent of their parents. But, the right of first refusal makes it that i have to ask my ex if she wants to spend the time first…which she does. So, this means that I am unable to have my children spend time with my family without me present. I find this absurd. My children will not develop some of the family bonds I believe they can create with their cousins by spending this time together. My being present creates a different dynamic with my siblings/parents and my children. Why am I not allowed to make this choice? It is not a convenience so I can go play.

    • Yet another reason I don’t like the right of first refusal.

  • Thanks Gregory you provide great blog and its really very helpful. For more details :- http://www.jamesnoblefamilylaw.com.au

  • Christine Quenet

    I have one thing to say, grow up and get over yourself. Take 100% responsibility for being a cause in the breakdown of your marriage and “love” your kids together. Stop all this sandbox fighting and stop for a minute and look at what you are doing to your kids. If nothing else “give them a chance” to love both parents. Be fair, honest, and apologize for your own mistakes then if you still want to get divorced find an attorney who doesn’t want to suck you dry and pay for an amazing life for his own kids with your fighting money. I don’t care what it is let it go, split it in half, but don’t split the children in half. You don’t have the right to steal the joy away from someones childhood because someone hurt you. Reach down deep and forgive, forget and move forward towards a better life. Learn from your mistakes and become a better person yourself. We all have room for improvement. I have been divorced for 15 months and was seperated for 3 years before that. (My husband cheated on me after 20 years of being together) After the initial shock there was no fighting, just reflecting on my choices. Good or bad I wasn’t going to make another one that would rob my children from being happy. Me and my ex-husband share everything equally for our girls. When I wasn’t working he also took care of me because I am the mother of his girls. He is a wonderful father, fully present, he sees his kids everyday. I never impose any questions to him about his life because I gave up that right when we got divorced
    Frankly its none of my business. The girls live in their house and we go to them, we don’t drag them around from house to house. If I am away he watches them, if he is away I watch them. Its simple. Do the right thing. Stay out of court as much as possible. Judges have better things to do to protect the community from real criminals. Nothing good comes from some thing that is forced upon us that is life 101. When you stop fighting there is nothing left, but to be happy. It is true, forgiveness does lead to happiness. Try it.

    • A.D.

      With all due respect to your situation, that’s easily stated when you are a mother who has forgiven a wrong & is doing what is best for the children. But speak to the millions of fathers who’s only wrong has been to realize that a relationship wouldn’t work out & end it. Many women use their children to hurt the father by withholding the children simply for revenge. What can a man who loves his children do? Judges are there for more than criminal cases. If things were so easy then you, ma’am (no disrespect), would’ve continued in your marriage despite your husband’s transgressions. And I’m not saying you should’ve. My point is that though many of us who HAVE taken responsibility for our part in the end of a relationship, the other party may have not and sometimes we must do what we have to do. There is a reason why we need some of these things like FROR in place. My reason is that my ex was out of town for school 3-4 nights a week & her mother kept our son while she tells me that she’s not comfortable with me keeping him overnight. Go figure. I don’t care about her mom keeping him at times, especially for work or going out for fun or whatever. But if she’s going to be gone away from our child for DAYS & I can’t even keep my own son for one night, FROR sounds like a good option for me.

  • Felicia

    Court is over. During the first court for temporarily visitation time he admitted on the stand that he drank everyday, that he had anger issues and punched holes in several of the doors in his house. The child was 6 months old at the time of the first court. When the child was 6 weeks old and strictly breastfed he served me with papers requesting custody and to give me reasonable visitation. I had been harassed and stalked for my entire pregnancy by his family and especially his mother. She was the one that told him to kick my a** out and take all the money out of the accounts. I offered constantly, daily for him to come see the baby or I offered to meet him somewhere. If I met him somewhere his mom would poke jabs about it on social media. After the first court date in September he was granted gradual visitation which I was totally fine with but the harassment and stalking continued and my child’s father stood up for her. The judge told my ex to tell his mom and family to stay out of this and she ordered him to not drink around the child. Him and I went through mediation and finally came to an agreement but when he told his mom what was agreed on she said that wasn’t enough time. She wanted 50/50 time and she knew she had no good reason to get it so she started making things up and posting terrible lies about me on social media. Then she started a fundraiser and in order to get people to feel sorry for her and give her the money she was begging for she started saying I was abusing and neglecting my son and that the sitter and pediatrician and my parents were all in on it because we were protecting the abusive behavior. The worse part is that the guardian ad litem that was assigned to the case was cyber stalked by her. (My ex’s mom). She was calling friends on his Facebook and asking about him. The gal had talked to me and talked to my ex in person individually months before but nothing else was done until she stalked him and then he immediately made an appointment to visit mine and my ex’s house for about 15 min each. Everything seemed to be going our way. Even at the break at the final trial the lawyer said things were going good but somehow it’s like the judge did a 180. It’s like she forgot everything that had happened in the first trial and if anything it was getting worse. She paid no attention to any of it. She now said that I had no reason to deny overnights even though he has a DUI on his record and I had pictures of the whole he had punched in the door. He is even bending every possible thing he can in the new custody order and it was definitely not written for the bests interest of the child. If the order say something vague like just morning or evening then he may want morning to be 11:00 one day and then 6 am the next time. It’s whatever is convenient for him but I find myself agreeing to whatever he wants because I want him to work with me one day even tho I never know if he will or not. How do I change something in the court order now? Isn’t it done and has to be followed as as? What do I do if it is vague? Do I just have to agree with what he wants? Now he is jeapordizing the awesome sitter I have by not showing up until 10 am and not letting her know any changes of the routine I have. I feel trapped and totally at his mercy. My lawyer said he has been doing this for 40 years and he has never seen a judge rule the way she did and give him so much time with all the evidence we had. It’s like they paid her off and she just ignored it all. Any help at all?

  • I am the father of a [now] beautiful two-month old girl. Her mother and I were engaged to be married in late 2013; she left abruptly without argument or verbalizing reason, merely two weeks after we obtained our official marriage license. I supported her, as she lived with me for a period of three months. Over the course of 2014 through her maternity I supported her monetarily, while I was given the cold-shoulder and few basics considerations as a father, to say nothing of our relationship. No assurance I would be notified when she went into labor, nothing. Nearing her due date, our communications were more civil and we spoke of essential things as co-parents must do; upcoming child care, her name, healthcare, you name it. I welcomed this child with open arms from the very beginning and in the beginning, her mother was very apprehensive, negative and even expressed interest in adoption against my will. Fast-forward a few months… When the time was approaching for her due-date, I was to be present (notified) when my girl was coming. Evidence in written correspondence, we had a very reciprocal dialog on important subject matters. Within days, I was in receipt of a letter from her attorney to, “Stop bothering her with phone calls & e-mail’s etc as it is ‘inappropriate’ until my paternity had been confirmed.” He advised her to, “go negative” – and indeed she did. My child’s due date came & went without notice to me, I didn’t come to know my child had been born until TWO WEEKS after she was here. And then, I was only told via the lawyers, “The baby has been born.” Her & her attorney withheld her name, her birth date, her GENDER, her health & well-being from me in an effort to inhibit me from obtaining a Paternity Test order. COLD HEARTED. I did obtain the order, judge signed it – and she took the maximum time allowed by law (30 days) to submit to the test (two days short of being in contempt). I’ve been the petitioner since day-one, I’ve pursued my rights to my own child, I’ve done, “All the right things.” Short of who I happened to conceive a child with. And I’ve been treated like a bad-guy. I finally obtained Temporary Custody Orders in which she has residential custody at this time, I’m limited to merely 2 hours – every other day, for up to six months! While a baby sitter gets the majority of time with MY child. I have her a mere 6 hours per week and her mother refuses to leave her with me at any time I make myself available, even when her mother could not otherwise be with her, herself. Merely two weeks following the temporary orders, she is just following such orders ‘enough’ to not be in contempt, while using the whole thing against me, using our daughter (our time together) as a weapon and giving preference to a babysitter that keeps her in a swing for 4-6 hours per day as opposed to being in MY ARMS, bonding with her daddy. Two hours per day… while the sitter is supplied with ample milk and other things. A lot more to this rotten tale I won’t burden anyone with, but I’ve been a VERY willing father and my child’s being kept from me in favor of a stranger – that is implied I have to help PAY for, yet I’m not supposed to know or even engage this person in conversation. A cordial greeting was met with hostility and I have local authorities investigating their illegal daycare (unregistered) while they have MY child in excess of 20 hours per week. Even on the weekends when I want nothing more than to care for my girl – her mother keeps her from me and dumps her on the sitter while daddy and daughter miss out on the most precious days of her life and essential bonding together. IT IS WRONG. And while I appreciate all the complications and nuances related to ROFR written here, I resent comments (including and most especially from the LAWYER(S)) that downplay the importance and/or significance of this clause for some cases. There is no reason to be so resistant of this and I am very upset with my own attorney for not having suggested this to me in the first place; it’s omission from our Parenting Plan has been a disaster insofar as just trying to BE A FATHER while her mother does her absolute best to not bring her a minute earlier than she has to, and insists on taking my baby to a sitter just to injure me and my relationship with my child. If you lawyer downplays the need or significance of ROFR language in your orders in wholesale, without consideration for the situation – FIRE HIM/HER immediately. I would do so myself except for the fact I’m so invested in my attorney, his familiarity and that he has evidence dating back an entire year, tons of screen clips, e-mail’s and correspondence between her mother and I that just hasn’t see the light of day, yet. Now I distrust him and feel he’s inept. If and when it does get inclusion, it SHOULD change everything. Now, I wait on the lawyers to ‘negotiate’ for MY time with my daughter while in NO CASE or ANY time should a sitter be given precedence over me – therefore there is little to ‘negotiate’. I am very hurt, very angry. I’m not paying for my attorney to play paddy-cake with another attorney behind closed-doors. I’m paying him to secure my daughter and I’s rights to each other and put a STAKE in opposing council. Not toy with him for weeks on end while I… wait. Wait for my beloved child.

    • Elizabeth

      I know your post must be very old. But I have to say Bravo. My husband has not missed his every other weekend in six years. We got married this Dec. It was gonna be the second week of his son winter vacation of which he suppose to get him half of those. He told mother two n half months early. There was excuses already. One was someone was having a baby and so that process does not include children, unless it’s his mother it was not his mother. Then of my dad very sick I wanna go Tennessee to see him. Then my husband said you can’t take him out of state. Stupid stuff. Then we told child why it’s important n he was all smiles n said I knew it was coming. He was very happy.. We’ll when she found out it was like congrats but pressured child to get a date. I said I don’t know that date. Thinking wow. Cause he said she needs to know date. I’m thinking she don’t need know shit.. We’ll suddenly one week before his scheduled vacation time was reg weekend for husband. She refused to let child go. Christmas we went to get him she refused to let him go. Brought police to document. She made accusations husband beat the child n I’m mean to the child. This is all coming from her mouth. Child n I get along so we’ll, he really aa good kid. Father has never ever hit that child. Tell u truth the kid is so good he needs no displine other then petty stuff. Dad just takes his playstaion n that’s like the most horrible thing haha. Now cps shows they know it’s all bullshit n going to court because she want vistation stopped n more support. Husband was gonna ask fifty fifty sense we are in school district. She used child to pry into our relationship n our businesses. So now when this is settled. I said that women is no longer allowed in our home. She can sot outside half hr to fourtyfive min like I have to when we pick him up n she decides she needs talk about kid. I’m done. Mind you I am thirteen years older then my husband n don’t appreciate cps at my door at my age with false allegations cause she wants to hurt him. Using her child as a pawn. I’m a grandmother n I thought cps was past my age. And what it’s doing to the child. I’m like he is 11 ask the child. Cps said I want you to know child said he likes you n enjoys coming. I said n I enjoy having him. He asked how displined him. I said no need to he good kid. And explained our relationship is not u’r typical step-mom step son relationship ship ots more like grandma. He usnderstood. Look guys this was a romantic love thing. It just happened n she got her big girl panties in knot. If you don’t intend on being stuck with a nut for 18 years use a vondom. I feel for u men. A lot women use the kids as way of revenge. Sad.

      • Elizabeth

        I meant not a romantic love thing. It was few month thing she said she could have kids. Do not trust a women who says that. Wear a condom.

  • Pingback: Right of first refusal on child care in custody disputes()

  • Zane

    While I completely agree with your observation and I am currently the father going through this exact scenario; amicable divorce turned nasty over her feelings and now the children pay the price. How do you suggest two parents agree to such things? My situation has gotten so ridiculous, that the Ex, actually has “anyone” and I mean “ANYONE” pick up the kids from school, even on my parenting time rather than contact me via a court ordered tool to say, “hey can you pick up little suzy, today at 1, rather than me finding someone.”
    We are in the middle of 3190 counseling and even the counselor says she’s wrong in what she is doing, the children should spend that time with dad, rather than a stranger. I would say that her actions are motivated by the enormous amount of child support she gets by keeping the parenting time to only what the court has so erroneously ordered; simply because the ex continues to say “NO, I can’t agree.” What gives one parent that right? We have seen a therapist who did not agree with her, we have seen the courts family mediator, who also did not agree but wrote the silly order to simply move us along in the divorce process so we did not take 3 years or more for a simple divorce. I am interested to hear others views.

  • lemarcus clemons

    Hey my name is Marcus if me and the mother of my child does not have court orders but she in school and works afterward day for day and only spends an hour or two with him but she has a sitter by me acyually being the blood father can i go get my son so i can spend time with him with out her permission? Could u txt me the details please and thank you 931_628_0419

  • Blanca

    My ex-husband and I have a 4 year old son who attends a pre-school daycare program while we both work. I have to commute for work while my ex works in town. This has been our schedule for over a year … recently our son has been misbehaving and I couldn’t figure out why. His teacher informed me that he has not been down for his naps and that could be why. Apparently, his father has been picking him up daily during his “lunch hour” and does not take him back in time for him to sleep. He purposely picks him up right before the kids are put down for their nap and wont take him back for about an hour and a half. By the time he gets back he is acting up. My ex never told me about this and is now saying it is his right under the ROFR. Is this right? The ROFR is a four hour stretch.

  • jen

    Can ROFR be modified when parents remarry? My ex is saying his g.f can watch them anytime when he gets married next month , I remarried few months ago but he is always at work the few times my husband has watched them. His g.f a teacher and off during the summer so he thinks if I’m off work then she still gets them on his weeks. He hasn’t done this yet but he keeps saying when they marry she will and she’s only kept them for 5 different days and they get hurt on her clock and she drives over state line into eorgia without letting me know. I can’t help they live 5 miles from state line, its still crossing state line! Does anyine kbnow anything on this?

  • michelle

    Jen==did anyone respond to you?
    If one of the parents remarries and therefore a step-parent will be present— does the other parent need to be asked first before the step-parent keeps the children?
    The decree was written in North Carolina and it says if either party cannot keep the children for 4 hours or more then they must notify the other parent first to see if they can keep the children. If a step parent is present, does the other parent need to notified? Thank you.

  • Kim bennetts

    Here’s the situation… Dad works a 24 hour shift and can’t take daughter on his given day so he has step mom watch her while mom is at work. Mom gets home at 3:30 in the afternoon and expects step mom to disrupt her weekend to be home for her to pick her up. If child and step-mom are at the beach, what are the rights of the step mom? Does she have to adjust her plans to be there at 3:30 or is there a leeway of time? The parents have a 4 hour FROR but neither parent was a a available until 3:30. This is a big issue as the mom does not like the step mom and doesn’t want her child with her. Step mom is not trying to keep the child from her but does not want that time constraint if they are out having a good time. Shouldn’t it be about the best interest of the child?

  • Holly

    So my ex and I have a daughhter together who is 4 months old. We worked out a custody arrangement without going to court and for the most part it is working. Except that he gets her 2 nights every week and every other Saturday. Every time he has her his mom is there and ends up being the one to spend all the time with her. He spent the whole day and night out to go a wedding and which he didn’t tell me about so I could have had that extra time with her. It’s very upsetting to me because I would love to have that extra time with her. Yes grandparents are great but that doesn’t mean they get time before mom. His mom also is manic and stays up crazy hours so every time I get Avery back she is very fussy and off her schedule because she doesn’t sleep much while she is there. I’m just wondering if there is anything I can do.

  • patrick

    I am father of a wonderful 4 year old little boy. When he was 1 year old my wife went back to school to get her graduate degree. 2 years went by I cant say I didn’t see the signs that she was cheating on me I just didn’t want to believe it. She finished school and I was served divorce papers. I am self employed and was the main care giver during this period of time. After a long legal battle I ended up with about 30 custody. But I have first right of refusal while she is at work and he is in day care. But the wording in the decree states she must be away for more than 4 hours. She goes and has lunch with him and says because she hasn’t been away for more than 4 hours I don’t have the right to pick him up from day care and spend time with him so far my lawyer says well technical she is right. I am good father and just want to spend more time with my Son who begs to see me more. Is there anyone that can help clarify this for me oh and I pay for 60 percent of the daycare. Thanks in advance.

  • ethel

    I am in a situation in which my to be ex and I have resided with my parents for a period of 5 years. My mother has been the child care provider for the children while we worked. My ex has been an absent father and suffers from a variety of mental disorders. He does not have an emotional bond with the children. The children are 10 and 12 and have no desire to visit him as they do not understand why while he lived in a house with them he stayed in his bedroom/bathroom or sat in the living room completely ignoring them. I travel for work and when I traveled he did not provide care for the children. The children were so uncomfortable with him that they would stay in parents loft with them. Here is our current problem. He currently wants the kids while I travel for work due to the law of first refusal. I am being told that if a child is in a home with a blood relative or in a home with a step-parent that the children can stay with them in lieu of going with the custodial parent. Is this true?

  • I had good luck with the right of first refusal, when the other parent became unruly I didn’t push it, I got her more than she did anyway. However, they added a two hour window for the other parent to leave with a sitter and that was disaster, that two hours ended up being 11 days and the phone access cut off, and just kept canting I have two hours, that is a trap, never do that, fight that as hard as you can.

  • Dennis

    Here’s the real problem with “right of first refusal”…all it is is words on paper. Neither spouse has to abide by it and if one or the other doesn’t, then the opposing has to take them back to court to have it somehow enforced involving once again attorney fees and court costs. I bring this up because my wife has a situation with her ex right now. He is a shiftworker and therefore negotiated a 50/50 custody arrangement since he is off work half of the month. They alternate visitation 2 weeks on/2 weeks off. Now, during his time with the kids (by the way, he is remarried now and has 3 kids with his wife totaling 5 kids) he often leaves them with their aunt and uncle sometimes overnight, sometimes for multiple days. He has also left them with friends for multiple days. Their son plays baseball and my wife always offers a helping hand to take him to his tournaments if his dad is unable to. We always get the same response of “I got it covered” only to find out that the kids spent the night with their aunt and she brought him to his tournament while his dad was at home. We know that he does this type of stuff out of spite because of the divorce, and all my wife would like to do is spend time with her kids every chance she can. They recently went to mediation to change the visitation to standard visitation schedule and he of course isn’t agreeing to that and the “right of first refusal” was brought up to which my wife’s attorney stated all it is is a piece of paper. SO, yes, it would be nice if this would be something that was really enforceable but it’s not unless you have the money to continue going back to court. For the time being my wife just has to sit by and watch the kids aunt get to spend time with the kids, time they are supposed to be spending with their father…time they could be spending with their mother

  • Daniel

    Dear Mr. Forman, You are missing a substantial fact pattern in family law cases: when the other parent leaves the country or state for weeks at a time. You appear to only be representing upper middle class families. Families in other income brackets: both low-income and high net worth: it is common to go back to one’s home country for a month in the summer or to go on frequent, lengthy vacations, or to work migrant jobs. Nearly all of our clients return to their home country for the summer and do not necessarily take their children with them. Quite a few clients only work night shift also.

  • Brittney

    Our situation is…my fiances ex constantly uses the “right of first refusal” all the time when it comes to picking the girls up from school/daycare. If shes mad at him or he dont agree to things then she will tell him that i cant pick them up cause she has the right of first refusal. Now does he not have a right to who he wants to pick them up when his work schedule wont allow him to get them in time? And can he refuse the grandmother of the girls to pick them up as well? Also i have picked them up numerous times and she knew it and didnt have a problem with it. Its only when shes mad at him that she uses that.

    • Rae

      It depends on two things. How long does their divorce decree give as a time frame before they have to offer each other the ROFR? In my case it’s four hours. Also, if their divorce decree states that the other parent can send a “designated” person to pick up the child in place of the parent, as long as that person is a “responsible” one, it would be allowed (at least in my case). Hope that helps.

  • Laura Casale

    I’m in the same boat. It’s sick how this happens in ‘family court.’

    I’m the ‘unfit’ one here. As my ex and his parents lied and destroyed my reputation in court, my daughter only wants me and is miserable.

    Now he wants his nanny to claim her on his 5:30-8 dinner parenting time Tuesdays and Thursday.

    I feel like if I refuse,there will be consequences. I hate that strangers and his awful mother insist that she be with them because it’s their parentjng time and they are entitled to it.

  • Amber

    If the costodial parent kicked the 16 year old child out of the house because the child wanted to go to the non costodial parents house on a non scheduled weekend and they got in an argument so the costodial parent tells them to get out with no shoes or coat when it is raining and afterwards the child calls the non costodial parent to come pick them up the costodial parent is completely aware of where they are going so the next day they call and said if they are not home by this time they will report them as a runaway since they were thrown out do they have to go back?? If they do not want to go back

  • Rae

    I’m sorry. At 16 I personally think that will make the other parent look bad if there is merit to why the child was “kicked out” and then teport them as a run away. Document what happened and ask the police if they get involved what to do and call your lawyer for legal advice. I hope it all works out for the best interest of the child.

  • Rae

    I meant to say with or without merit. Sorry!

  • Tasha

    I had first refusal put into our custody agreement bc my almost-ex trying to get full custody of both our special needs children after I was the stay at home for 12 years. I knew he didn’t really want the kids- he was very blunt about it- he just didn’t want to pay me for raising them. His plan was to keep as much of his own money in his pocket. He would have his girlfriend or mother watch the kids if he was unable. …which I knew would be ALL THE TIME. He didn’t get custody, in fact he only gets one 36 hour window each week to spend with his kids. And at first, bc of his job, his mother or girlfriend was watching them during that time. I repeatedly reminded him of the first refusal, bc it works both ways, he said he didn’t care. Finally, we went down the lawyer chain (me to mine mine to his his to him). This entire year he has only been able to take the kids 4 times during his 36 hour window. He is appealing the support order now- claiming there is no reason why I cannot get a job earning at least $50,000 a year since that’s what I was making 12 years ago. And if I won’t find a job them I should be held accountable for that much for the financial support of our children.
    Sometimes someone has a hidden agenda, like money. I think first refusal is a good way to help reveal that to a judge. When someone says “all I want is what’s best for my kids” but pans them off on others, doesn’t spend the allotted time with them and won’t acknowledge or recognize the problems they are creating for this children then what they really mean id “I want what’s best for my kids, as long as it doesn’t interfere with what I want”
    Kids are already so torn up from thier parents not being together, the last thing they need is adding new time with new people. I think first refusal should be STANDARD in an effort to see who really is concerned about the best interest of the child.
    And I’ve NEVER asked why he can’t take his kids on his days, I don’t care. I just know that if HE can’t spend that time with them then they should be with me.

    • me

      I agree. I dont care what he does or who he does it with as long as i get the option to have them its quite simple… “hey, can you take the kids this weekend?” “Yes, what time or yes ill keep them or where do we meet so i can get them?” The problem is its not always two parents who will or two parents who refuse or are nosey. Sometimes its one parent who is respectful and cooperstive and the other has a personality disorder and wants drama so they create it. They dont want you to have those righs and you just want your kids if the other parent goes out. Sometimes i think one parent doesnt want it because they dont want tabs kept on them, like how much they go out, if they always ask or always refuse it can be held against them. My words for that? Well, put your kids first and you wont have to worry so much about covering or hiding.

  • Savanna

    I live in Massachusetts and have split custody with my sons father.we were never married. After us losing custody of him due to being irresponsible parents who were actively battling addiction,he got custody before I did.I received split custody several months after he had. Unfortunately,he put our son in daycare over the summer instead of being with me,though I was available,sorry because it was his days to have him. Now he has started school after work and never sees him.I am available but he has him with our sons godparents instead.they also pick him up from school even though I’m available.he also drops him off at a neighbors to get him on the bus even though I’m available. I’ve spoken with him about how neighbors etc should be a last resort and not a first but it hasn’t made a difference. He is angry and spiteful with me,I’ve married since being with him,have been sober for some time,and moved on and been successful with my life. I’m not sure if ROFR would be the best way to go as I’m trying to avoid a nasty court despite but I’m not sure what else to do.

    • Melissa Norman

      I am in a similar situation as you except on the other side. The mother was irresponsible and my fiance is not letting her have her during off time. However the mother is still taking methadone and suffers from undiagnosed mental issues. (Kleptomania, compulsive lying etc.) She keeps making demands for the child during our time and wants her to not be put in daycare. My fiance thinks limiting his child’s time with the mother is best overall for the child. Perhaps ask for family therapy so he can see that you have made these strides to better your life and that you aren’t the same person you once were. You will have to be the one to prove yourself, it just is what it is. Best of luck.

  • Christy

    I live in Indiana and I am a step parent. My husband has full physical custody and 50/50 legal with his ex wife. They are not under normal parenting time guidelines because she has had many issues with alcohol and mental stability. My husband is going out of town for business and his ex wife believes she should have the rights to child while he isn’t available. I am wondering what the law says about step parents and their rights when child lives full time with them? We have an email into my husbands attorney to find out what we do. She is unstable and has mentally abused child. We are in court proceedings right now to get supervised visitation for what she has put the child through.

Archives by Date

Archives by Category

Multiple Category Search

Search Type