Right of First Refusal with a stepfamily

[lsaenz]

Hi there!  This is my first time here and it's taken me a long time to find your site.  Mine is a very long story but I am going to try to condense it so I can get some feedback quick.

My husband has a son who is 10 yrs old.  We have been together for 8 yrs.  So for 8 yrs we have built a family unit with his son and my two sons ages 15 and 8.   We have never really had a problem with his ex before now but that's because my husband has allways given her her way.  Now he stands up to her and we have a fight on our hands... He recently had his days off at work changed and she did not want to agree to change his visitation days so we had to hire an attorney.  She had her attorney add in the right of first refusal after 4 hrs.  We were under the impression that the RoFR pertained to the time of pick up.  Needless to say we were wrong and when we ? his attorney as to why he allowed it to be in the new stipulation if that's how it could be used his reply was because he never thought she would use it that way!  What she is doing is considering me a third party caregiver while my husband is at work so when his son is here for visitation-three days one week and four days the next week-she shows up when he is at work and says she is invoking her RoFR.  On our Halloween holiday she did the same thing-she said noone but his dad could pick him up before 2pm (we were supposed ot have him from 9-9) but after 2 anyone could pick him up.  

Basically what I am looking to find out is if anyone out there has been in a similar situation that can tell me if a judge will consider a stepparent and not a new one a third party caregiver when it comes to a work shift of a father.  When someone responds I will go into more detail but right now I just need some friendly advice. PLease help!!

[dsm]

Do you have anything in your current order about what your role as stepparent is?  

The parenting plan should lay out some specifics for you - like you should be able to transport the child, feed the child, entertain the child, give emotional support at functions for the child - all with or without your DH being present.

Sounds to me like you need to file a modification of the current order to make these things crystal clear.  Do you have a history before all of this of her being okay with you being there with your SS when your DH is not?

What probably will happen (at least in WI) is that the judge will order your DH and his ex into mediation.  If mediation fails (which it probably will given that she doesn't agree now to the things happening), then it will go back in front of the judge who may or may not order a GAL to get involved.  Then each of you make your case for the GAL and this could work out to be good for you.  Because since you say that you have a family environment and have had one for 8 years and your SS considers your sons to be 'family', that very much should be brought to the table - the time that your DH gets should also be to foster quality family time for your SS's extended family - you, your sons, his grandparents, cousins, close family friends, etc.

Starting TODAY, get a notebook and start documenting all this stuff - when your DH is supposed to have the kids, does he get them, when does she exercise this rofr, etc.  

One thought....to combat this, have y'all tried to get the kids back when your DH gets home from work?  You could try that tactic too.

If you'd like I can post what our parenting plan says about me.  Let me know.  It helped our case greatly when we went to GAL - and it is very much what turned the custody situation for us.

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dsm - 34
DH - 37
SD - 15
LO - 8
BB - 18 months
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2 Cheap Entertainment cats - Snoop & Dagger - 5 years and counting.....

[KAT]

It sounds like you need to file a motion to clarify...and however sneaky, add yourself to papers. IE Comes now John Doe father and Jane Doe stepmother with a motion to clarify ROFR. HA!
KAT

[4honor]

Not be home when she wants to pick up. Is there a class SS can take with your sons on those days that will interfere with BM's wish to cut short the days?

[lsaenz]

Yes, I have thought of that but according to their joint custody order they are supposed to discuss extra curricular activities prior to signing up the child.  

[4honor]

You can simply make a family outing each week during that time. He goes when he is there. She can't take him home if he isn't there.

What does the order say about right of first refusal? If it doesn't have a specified time frame, then go "out and about" until DH gets home from work and let the kids have their time together.  

We are trying to get ROFR in a new plan, but because of distance, we have put it at greater than 8 hours (longer than a work day). And that only the parent acting as NCP (DH would be CP in Summer) can pick up and drop off during the other parent's work day, provided the NCP makes arrangements 48 hours in advance. The idea being to maximize the time the child is with each parent. We are 3 hours from the CP.

[littlebit]

I don't like the idea of just being gone when BM is expected to pick-up.  That gets to be a bit underhanded, which is just the kind of behavior you are trying to combat in BM.  And also, if it ever comes before a judge or GAL, you want to have clean hands.

Go through the attorney to get clarification / modification.

I always try to choose the high road, but I'll be the first to admit that it is an uphill climb all the way!

[MixedBag]

I'm just wondering how well the shoe fits on the other foot....

Does she work and could dad go get the child just like she does to him?

Otherwise get it clarified ....

Maybe do a "Motion for Clarification"  and maybe no hearing and stuff has to take place or just a short hearing.  And just let the judge clarify how it's supposed to work.

[DecentDad]

Could you post the exact language of the order?

AND... just have your husband arrange "play dates" with your sons for all of the time that he's away from home.  Obviously, they're all brothers, but if his ex is going to pretend that you're not part of the family, then have the kids in constant play dates.

This way, his son is always involved in activity with "friends" that dad scheduled during his custodial time, and he can write and notarize a statement to that effect that you can have on you.

I seriously doubt a judge would take her seriously.  It's very transparent what she's trying to do.

DD

[lsaenz]

Just realized I had more responses.  So glad others care!  Part 1 section D states:  Both parents are entitled to the right of first refusal if the custodial parent is not available to care for child for a time period of over four hours; and the party choosing to exercise said right must provide transportation.  

We believed that it was only relative to pcik up and drop off time and have a letter to our attorney ? that part prior to signing it asking what if we are late picking him up where is she supposed to transport him from ?  So he knew or was too busy to notice that we did not understand the RofFR.  

Regardless, since then she has now filed for an increase in child support and we go to court next week.  Let me tell you this has been a wild ride.  All I know is that I aksed my SS if he wanted to be here when his Dad was at work and he said yes so that is enough for us to keep fighting her!  It's all about what he wants not what she or I want!  I only hope the judge or mediator sees it that way because he is the most important party here!  Thanks again for all of your help!! Any more advice or Ideas are welcome!!