First Right of Refusal Clause: Are SP considered a 3rd Party?
I am very involved in my SS's life, much more than his BM. But after the First Right of Refusal clause was put into their recent court order per my husband's request (to protect my SS from being around shady people all day while his mother was at work or out of town), she has taken that as an opportunity to try to keep me from spending as much time with my SS, stating that I am a 3rd party. My husband and the BM share a week on/week off schedule. So if my husband is at work, she says she has the right to watch him during that time instead of me because I am a "3rd party". And while this may be a good argument if she was a decent parent and actually spent time with him and took care of him, she is only doing this to use my SS as a pawn to try to get back at my husband and to hurt me. Thoughts?
Depends. did they use the
Depends. did they use the word "babysitter" or the words "Third Party".
Babysitter is generally seen as someone PAID to watch the children. Third party may be anyone up to and including Step Parents, Grandparents, Aunts, ect.
That's going to depend on how
That's going to depend on how specific that clause reads and whether or not it's directed to both BM and DH. If it was loosely written, example 'other parent has first rights of refusal in the event absence of x hours'...you would indeed be considered to be third party that BM could use this against. You're not the parent. Visitation/parenting time is meant for the biological parent and if ROFR has been included into the CO it usually means that if the biological parent is not able to be physically present with child (usually a set amount of time such as 3 to 8 hrs is stated) the opposite parent must be asked if they would like the time before leaving the child in the care of an alternative person.
If your Dh had this clause included and the wording is clear , such as party A and party B (BM/DH each being one of the parties), you are indeed party C aka a third person. However that's not to say BM can say she'll take the kids because Dad is working, and then be not available herself to watch them (example: she's also working during that time and intends to take them and dump them off on yet another party). It's not meant for BM to get to pick and choose who she desires to 'babysit' the kids.
You need to look at exactly
You need to look at exactly how the FROR clause is written and what the time frames are.
You could be a third party dependent on how it's written.
However FROR is not written to allow BM to meddle in DHs parenting time- it's obvious that when he is working he can't watch the kids. Let's hope you guys haven't shot yourself in the foot with a bureaucratic clause that is used as tit for tat punishment by an immature BM.
It would make sense that you
It would make sense that you are. Think about it. Unless you are specifically named in the order along with your husband then the point of FROR is that the child be with one parent or the other in favor of ANYONE else. Even a grandparent would be a third party.
I think you two are dead in the water on this. But you said your husbands concern was when the BM was at work or out of town. She can't take the kid under FROR then prance off to work leaving the kid with some lowlife friend.
This is why I always ask DF
This is why I always ask DF if he's willing to play by the same set of rules he expects BM to play by when he starts ranting about taking her to court. Nine times out of ten the answer is no.
We deal with this too.....BM
We deal with this too.....BM used to use this as a ply to contact my husband all the time to keep in contact and keep the kids away from me. It was okay however, that the guys she was cheating with moved right on in without missing a beat and she always thought these rules didn't apply to her. Yes you are a third party unless its specified otherwise.
We have one week on one week
We have one week on one week off too. We modified it so that ROFR goes if he should be out of town for more than 2 consecutive nights.
In the interest of early
In the interest of early disclosure I tend to be the primary counter point to the “Sparents and legal standing” issue of discussion.
BM says you are a 3rd party and the Skid can't stay with you when DH is not there? :?
. So what? BM can blather all she wants but on DH's time what she says means shit for nothing unless she wants to drag your DH to court.
Sparents are likely not considered a 3rd party for all practical purposes though from a legal perspective they may well be a 3rd party. This is fairly easy to deal with though as your DH could easily give you a general or limited POA to act in his stead regarding Skid issues and Skid time.
I never had a POA regarding SS but I also did what I wanted when I wanted regarding the Skid's care and best interests and no one ever said a word about it. I registered him for school, I picked him up and dropped him off from school, I took him to the doc, admitted him to the hospital, checked him in for flights, signed for him with gate agents when he was traveling as an unaccompanied minor, traveled with him (just the two of us) internationally, etc.. And never once did anyone ever say a word about it except for the Sperm Clan upon occasion. They could blather all they wanted but we just ignored them. A POA never entered the minds of my bride and me by the way.
The only instance where I was excluded as being the Skid's dad was in court. I was excluded from the court room along with the rest of the witnesses for both my bride's side and the Sperm Idiot's. That was fine. I was the one who with my bride did the research to shred the Sperm Idiot and Sperm Clan in court and once the hearing was adjourned and my bride walked out of the court room I was dad again. Not in the courtroom? No one can enforce shit for nothing over a Sparent regarding parenting or being mom or dad to a SKid.
Most attorneys will tell you that you have no rights as a Sparent. Which from a legal perspective is perfectly accurate. However, my attorney once told me to do what I wanted when I wanted to do it regarding the skid until someone in authority said I couldn’t. He clarified that the only person in authority was a Judge when in a court room. Once out of the courtroom there was no practical authority governing Step Parents as long as there was no criminal behavior. That worked for me and that is exactly what I did from the time the Skid was 1yo until he aged out from under the CO at 18.
So, get the POA or not. Either way do what you want, when you want to do it. If DH delegates to you with a POA then his time is your time and BM can fuck off unless she wants to take it to court. Outside of court it is nothing but a civil issue and law enforcement will likely not touch it with a ten foot pole. If she is intelligent enough BM could of course counter with a POA of her own naming one of her crack head friends. If she does that then DH can use that as evidence that BM is far from looking out for his son's best interests.
IMH legal layman's opinion and experience of course.
You sound like the only REAL mom your Skid has. BM may be involved at some level but she is far from his mother. From the sounds of it she was his renta-womb which your DH is still paying for on the CS installment plan. No one that toxic is a REAL mother or father. Of course not all BMs or CPs receiving CS are toxic.
My opinion is that you do what you need to do to look out for your son's (SS's) best interest and the Skid's time with his dad is the Skid's time with you too.
Sure I understand what ROFR
Sure I understand what ROFR is. However, like anything in a Custody/Visitation/Support CO ROFR is very difficult to enforce. If Dad does not inform BM that he is not with the kid how will BM know to invoke the ROFR?
Control the information and this is a non issue.
My focus as the husband of the CP and the only full time REAL dad that my Skid has ever had is my family. Regardless of what the CO says the situation can be effectively managed. Nope, there was no ROFR in our CO. We never lived neared than 1200 miles to Sperm Land so ROFR would have made no difference to us. We were not going to dump the Skid off with the Sperm Clan any more than the CO required and when they fairly often did not take a visiation for what ever reason we had him anyway. Even when we sent him to boarding school and the Sperm Clan threated us we just told them to bring it and they as usual crawled back in to their shallow and polluted gene pool. I would have loved to have watched them try to convince a judge that because SS was not with his mom (and I) that he should be with them rather than at a top 20 boarding school.
STalk is full of people struggling with an opposition that does not follow the CO. What judge is going to make a big deal out of a ROFR clause when dad is in a stable marriage and when at dad's house the Skid is in a safe stable environment compared to when with BM the SKid is pawned off on random people of dubious character?
I think that quality
I think that quality responsible parents need to protect the best interests of their children even if it means creatively interpreting the CO. Since so few family court judges appear to protect the best interests of children then parents must.
In this case with the information provided dad is a responsible quality parent and BM is not. BM exposes the kid to questionable people. If I am dad, I am protecting the kid from the toxic exposures perpetrated by the BM. If both parents are reasonable and of quality then this issue would not arise.
I am not an attorney, however family law is not legislated law, it is predominantly case law which is entirely the product of opinion and interpretation. A parent protecting their child must interpret the CO in the way best suited for the kids best interests and if it ends up back in court they must be prepared to shred the opposition and justify their actions within the words of the CO. The nice thing about most COs is that they are short, generally worded, and very easy to interpret with significant leeway as the reader wishes. This strategy worked well for us. Since the Sperm Clan never learned the CO and dealt entirely from a position of emotion rather than intellect our interpretation was THE interpretation except when in court.
IMHO of course.
While I agree with you in
While I agree with you in theory, in practice I fear this will get the OP's an even worse result. Ignoring the ROFR will obviously just invite BM to do the same (since she's playing the tit for tat game already) - which will totally negate the efforts to get the damn thing in the first place.
Nope, sadly I think you've got to play by the rules if you want to have any hope of getting BM to do the same. And that means (depending on how it's worded) that she might actually have a right to the kid during work hours as long as she's not working. You could, of course, always go back to court and amend it, but I'm honestly not sure it's worth the time and effort - she'll just find some other way to "get back at you".
I was editing when you posted
I was editing when you posted so my change did not go through. I was changing some wording to say that family law is primarily not legislated which makes it very flexible to interpretation. I can't easily determine if it is case law, administrative law, etc... I believe it is a combination. Our attorney friends can provide clarity on this if they chose to.
I agree that following the CO is the best way to go, however the side that knows it best has the advantage in getting what they want. We insisted that the opposition follow the CO and when they asked our opinion on something our opinion was what we wanted and not what they wanted.
We were fortunate in that they never read it and their attorneys were bargain basement. We knew it backwards and forwards, upside down, and sideways and when we obtained counsel it was the best available in our price range which increased over the years while theirs decreased as the Sperm Idiot bred himself and his younger spawn into poverty.
When the opposition is toxic the conflict is a campaign not a single battle in most cases. It is maneuvering, positioning, attacking, defending and the goal must be to win what is in the best interests of the kid. If that means liberally interpreting actions within the CO then that is what 'you' do.
IMHO of course.
Rent a womb !!! Another
Rent a womb !!! Another classic, along with the shallow polluted end of the gene pool and sperm land . Love it !
The exact wording on the CO
The exact wording on the CO is "When a parent is unable to care for the minor child during their parenting time, they shall offer to the other parent the opportunity to care for the child before putting the minor child into the care of a third party" My lawyer had told me that since I was his SS and heavily involved (BM used to ask me to watch him or transport him even)that I would fall within ROFR. However, re-reading this verbiage, I am realizing that there is lots of room for interpretation and badgering since there is no time limit (ex: 4 or 8 hours) mentioned. So essentially if he runs to the store, he has to ask her? Ug. What a clusterf*ck. I used to be on her good side, but when she saw that my SS and I were closer than they were (because she was never around and when she was she would put him in front of the TV or Ipad) she turned on me and saw me as the enemy even though I have always respected her as his BM. I help him make Mother's Day projects every year to give her for example. I think she's a miserable parent and human being but since my own BS has a SM at his father's house, I know how hard it is to deal with another "mom" being in my son's life. I know she goes out to the bars and has her family or a babysitter watch him when he's with her but I don't know how to prove it... The reason we wanted the ROFR was so she couldn't put him in childcare against my husbands wishes and then try to take him to court to pay more child care support (which she did A LOT!).
Regardless of the wording
Regardless of the wording chosen by the idiot bottom 10%er of the legal profession Family Law Judge a test of reasonableness applies.
As written I would interpret it as DH would never have to offer any of his time to BM as long as the Skid is with you. When the Skid arrives in your home to visit Dh and you and dad leaves he is not "putting" the skid in your care, the Skid has already been under your care and the kid will "remain" in your care. If BM drops the kid off then she is the one that "put" the kid under your care. End of drama and issue.
I would have an absolute blast with this if I were you.
To borrow some reasoning from a former POTUS 'It depends on what you think the definition the word "putting" is.' }:) }:) }:)
Have fun.
IMHO of course.
We didn't really request
We didn't really request anything other than ROFR to be added in the order because the BM would let her family take my SS out of the state or spend the night at random places during her time instead of letting us watch him. She also would constantly be trying to get child care support for times she enrolled him in a daycare despite my husband saying that he would be happy to watch him for free instead (so she wouldn't have to pay child care, and in turn, she couldn't drag him to court to try to claim excessive child care expenses to get more support). I don't know if our lawyer messed up by not requesting specific wording or whether or not the judge was an idiot and purposefully put a generic (and therefore confusing) ROFR order in the CO. Rags, I like the way you think! I'll have to keep that in mind!
Your husband is doing the
Your husband is doing the very thing you are upset with BM about. He wants to control who the child is with during her time.
If it's wrong for BM to control what happens when the child is with dad, then it has to be wrong when he tries to control her time.
Our CO actually states that
Our CO actually states that FROR is only if parent is going to be absent for 12 hours or more, and that the other parent may not claim that they get to watch SD during normal work hours. BM tried to pull that she had the right to watch her when her after school care program planned a huge party for the kids, but BM wanted to spend the day with SD at home, on SO's day. It really depends on what your DH requested in the CO.
When we came upon this same
When we came upon this same conflict many years ago, my DH took it to court, the court clarified it to him as.. A 3rd party would be a day care, or a non related babysitter. Not a family member watching the child. It was also stated that during each parents parenting time, that parent had the right to have a person of their choosing watch the child..i.e. Grandparents, spouse etc.. The only time 3rd party came to play, was if child was going to be left with a non related babysitter or day care, then the other parent had the right to that time. At least that's what our court system said about FROR..
Ours came about bc of the 50/50 split time, BM was one to take SS to day care rather then parent herself (during her non working hours)
She would rack up a day care bill, and then not pay. My DH would get sent the bill even though we NEVER utilized day care, with me being a SAHM we didn't need it. We had our attorney take the matter to court, our lawyer is amazing and this is what she did, she had it court orders that any day care expenses incurred where paid solely by the party that used the day care, so basically if you chose to use day care during your parenting time, then you pay. Of coarse BM pulled she can't afford it card even though she was using day care to watch her kid while she was out doing anything she felt like, so our attorney rebutted with.. Then the FROF should be placed, She loses that time, DH ( me ugh) gets it, and BM no longer has that expense.. So we won, which really pissed her off, bc deep down we think she had a scam going with day care lady, mind you my DH husband paid the bill several times until I put my foot down, I think they would send DH the bill, he'd pay and they'd split the money. Could never prove it, but that's my theory anyway. Partly bc we ended up only having to watch SS a few times, after that on her days, then all of a sudden day care time wasn't need, even though it had been the norm on her time for almost 2 yrs to that point.
For our legal pros.... how
For our legal pros.... how does a Sparent acting enloco parentis during their spouses COd time impact ROFR?
Just curious.
From Steplifesux post above I do not think it would much matter since a spouse watching a kid apparently does not violate ROFR.