Right of first refusal

[Jenncat]

Dear Soc,
I am in Sacramento County. The children's father and I live literally 1/4 mile apart.
 In 2003, he did not show up for mediation. The order was adopted as is: Father shall have children Wed., and every other weekend from Friday after school until 8:00pm Sunday evening.
 We soon after agreed verbally that it would be best for the children to be w/Dad Wed., Fri. and every other W/E until he drops them off at school Mon. morning. It has been great for the children, they are thriving and doing very well in school.

 In March of this year, Fathers new GF moved into his home. Since then there have been many times He has left them with a babysitter instead of calling me first. He also took them out off school one day for 41/2 hrs without informing me to take them to Justice of the Peace when he and GF got married 8/31.
 I discussed these issues w/him and he agreed to call me first if he needed a babysitter. Fri. Sept. 15 was (per court order) my custody time, but per verbal agreement I assumed they were with him. He had his mother pick them up at school that Friday and babysit them that night as he went out of town. I was not informed, If I was I would have been more than happy to pick them up as legally it is my Friday anyway.
Our C/O does not state Right of first refusal, but I think Sac County is automatic.

1) Is right of first refusal automatic in Sacramento County or does it need to state specifically in the C/O?

2) Was he in contempt?

3) How do I begin to enforce the C/O ?

I am in no way trying to take away the time I verbally agreed to as it has been the best thing for our children, but since March the Father has not been exercising his visitation time by having babysitters instead of him or me. Thank you for any help or advice you have.

[socrateaser]

>1) Is right of first refusal automatic in Sacramento County or
>does it need to state specifically in the C/O?

Must be specified in court order.

>2) Was he in contempt?

Probably. But, it's doubtful that the judge would find it sufficiently egregious to actually sanction him. If it were happening every weekend, that would be a different story.

Just tell that you are entitled to the children when the court order says so and unless he obtains your consent to a deviation in advance, that if he continues to violate the order that you will have no choice but to ask the court to intercede and that you would prefer to keep things happy for everyone's sake (try not to start a war).

>
>3) How do I begin to enforce the C/O ?

You can move for a clarifcation order from the court, and ask the court to expressly provide for first notice/refusal because it will advance the children's best interests. If the other parent is routinely preventing you from exercising custody, then you can file for contempt, but you will need extremely credible evidence, because in CA, written contempt motions are quasi-criminal, and that means you will need proof beyond all reasonable doubt and the other parent can refuse to testify.

Contempt of custody orders that occurs outside of the courtroom is very tuff to prove up (not impossible, but usually very difficult).

>
>I am in no way trying to take away the time I verbally agreed
>to as it has been the best thing for our children, but since
>March the Father has not been exercising his visitation time
>by having babysitters instead of him or me. Thank you for any
>help or advice you have.

Parent's don't actually have the right to orally or in writting agree between each other to changes in the custody/parenting orders. It happens frequently, but it's not lawful.

A parent can certainly delegate his/her custodial authority to the other parent, but such a delegation is always subject to revocation, except where the other parent has detrimentally relied on the prior delegation (such as by making travel arrangements, or some such).

This is a difficult line for parents to toe, so I strongly suggest that you try to operate on the existing terms of the order with some laxity for occasional problems. Life is what happens when you're making plans. Somehow you and the other parent need to be able to cooperate, because if you can't, eventually things will get bad enough on one side or the other that the court will modify parenting to severely restrict one or the other parent's parenting time.

[Jenncat]

Thank you so much, Soc.  I was afraid to enforce the C/O, I think he will try to go back for modification and use the fact that I've been giving him my time as a way to do it.  I am documenting all instances of him leaving the kids w/ a babysitter.

1) Should I write him a certified letter stating my intent to enforce the C/O?  

[socrateaser]

>Thank you so much, Soc.  I was afraid to enforce the C/O, I
>think he will try to go back for modification and use the fact
>that I've been giving him my time as a way to do it.  I am
>documenting all instances of him leaving the kids w/ a
>babysitter.
>
>1) Should I write him a certified letter stating my intent to
>enforce the C/O?

Just so your clear, the fact that he currently leaves the child with a sitter during his time, is his right, unless you are able to have the order modified to provide you with first choice/refusal. But, if he leaves the child with a sitter on your time, that is contempt, unless you expressly allow him to do so.

A certified letter is unnecessary. Write him a "nice" letter. Make it casual -- not threatening. If you like post a proposed letter here and I'll review it.

[Jenncat]

Dear xxxx,

   This letter is to inform you of my intention to exercise my court ordered right to custody of the girls this Friday, Sept. 29th.  I will pick them up from STARS at 5:30.  

   We are both entitled to the girls when the court order states, however I am also willing to continue to allow flexibility and I ask the same of you.  We both know it is best for the girls for us to do our best to cooperate.

  During our phone conversation on Sept. 1, 2006, we both made agreements to each other.  I feel I have followed that agreement.  On Friday, Sept. 15, 2006 you had your mother pick up the girls and baby sit them that night since you were out of town.  You had agreed to call me first if you needed a baby sitter, not only that, it was my court ordered Friday.  I ask again that you call me first especially if it is one of my court ordered Fridays that I have agreed for you to take.  I am also willing to continue to allow you to have the girls on my Fridays, but I ask that you please cooperate with me and refrain from angry outbursts when I inform you that I will be exercising my right.  I agree that it is best for the girls that we cooperate as you stated in our phone conversation.  



Sincerely,

XXXXX


Thanks again Soc.

[socrateaser]

Edited:

Dear xxxx,

This letter is to remind you that I will be exercising custody of our girls, this Friday, Sept. 29th.  I will pick them up from STARS at 5:30.  

I'm sure you realize that in order for our custody orders to work in our children's best interests, that we both need to cooperate and permit some flexibility. However, we are each lawfully entitled to the girls according to the court order's terms and conditions.

During our phone conversation on Sept. 1, 2006, we both agreed that we would offer each other extra custodial time if we needed a babysitter for more than ____ hours.

I believe I have faithfully followed our agreement. However, on Friday, Sept. 15, 2006 you allowed your mother pick up the girls and baby sit them for the night because you were out of town, despite our agreement and on a day when I was legally entitled to exercise custody.

This may seem like not such a big deal to you, but I treasure every second with our children and it is a huge thing for me to miss any opportunity to spend time with them.  So, I'm asking you again that you call me first if you cannot exercise custody according to the court orders, for more than ____ hours -- and, that you do not interpret our agreed upon mutual flexibility as authority to ignore the court ordered parenting schedule.

Finally, I recognize that sometimes our disagreement may cause each of us considerable emotional distress. However, I ask that you try to remain calm and not invite me into a shouting match. When you raise your voice to me in anger, I feel that I must defend myself, and the result is that neither of us will get anything out of the conversation other than a migraine.

I know that this is as difficult for you as it is for me -- if it wasn't, we probably wouldn't be divorced. But, I am trying to make the best of things for our children, and I'm sure that you want to do the same.

Sincerely,

XXXXX

END

PS. See how sensitive and emotional I can be, behind my gruff exterior? I'll bet you didn't realize that I look exactly like that stud, plastic surgeon on Grey's Anatomy: [a href=http://www.imdb.com/name/nm0199312/]Dr. Mark Sloan (Eric Dane),[/a] now did ya?

LOL!

[Jenncat]

>PS. See how sensitive and emotional I can be, behind my gruff
>exterior? I'll bet you didn't realize that I look exactly like
>that stud, plastic surgeon on Grey's Anatomy: [a
>href=http://www.imdb.com/name/nm0199312/]Dr. Mark Sloan
>(Eric Dane),[/a] now did ya?
>
>LOL!

Careful Soc, no woman can resist a handsome and sensitive man.  Don't make me dream about you.....  ;)

Thank you for the editied letter, I think it is excellent.  I will keep it in my arsenal.  I did however give the original to him yesterday afternoon as I was short on time.  He did call me right away, but was in control of himself and just said "Do what you want".  
Thank you again for your help.  I'm sure I will need you again soon.  You know there's always something!