Need help regarding vacation days

[ccmidaho]

Hi Soc, I had previously posted some of these questions on Friday May 5th but you never responded so I'm reposting here and adding additional questions. Please let me know if I'm posting incorrectly. Thanks!

First, here is the exact text of our Idaho court order for our vacation section. Child is two years, 2 months.

"We agree that each parent shall have up to fourteen (14) days vacation within each calendar year, so long as thirty days written notice (of those dates) is given the other parent, provided that until child turns 5, for vacation periods of less than four (4) overnights, fourteen day advance notice is sufficient. Subject to this, when less than thirty days written notice is given, and vacation plans interfere with the other parent's schedule we agree we cannot exercise our vacation days with child unless we have the other parents consent.

Until child is two, we agree vacation shall not result in child being away from either parent for more than two consecutive overnights. Until child is three we agree vacation shall not result in child being away from either parent for more than three consecutive overnights. Until child is age four, we agree vacation shall not result in being away from either parent for more than four consecutive overnights. Until child is five, we agree vacation shall not result in child being away from either parent more than 5 consecutive overnights. Between ages five and seven, we agree vacation shall not result in child being away from either parent more than seven consecutive overnights. After age seven if a vacation results in the child being with one parent for two consecutive weeks the other parent will have the next two consecutive weeks prior to returning to the alternating schedule thereafter. These restrictions on time away from a parent are not applicable to the normal custody schedule."

Here is the situation:
I made a vacation request in writing with 16 days advance notice to take ONE vacation day to be tacked on to my normaly residential friday overnight. My residential schedule for this particular weekend is from friday night at 5pm to Saturday at 7pm. My added vacation day would be an additional 24 hours so that the required drop off is 7pm on Sunday. I have told BM that I would bring child back at Sunday at 5pm,  two hours early.

Mother has denied the one day vacation request due to the following:
She wants child back at noon on Sunday, not 5pm which I maintain is supported by our agreement. She  then said that if 30 days written notice is not given and it interferes with her time, then she has to consent to the vacation day (please see the portion in our agreement that addresses the notice). She is therefore "not consenting" since I didn't provide 30 days notice.

I feel that our agreement is quite clear that when child is under 5 and vacation days are less than 4 days, 14 day advance notice is all that is required from me and that I don't need her "consent" to a 5pm drop off.

My questions are:

1. Please clarify the written notice part - can she deny my vacation request based on the facts I've provided? For this vacation request, 14 days notice is all that is required right?
2. Does the agreement support my assertion that a "vacation day" equals 24 hours of time?
3. If I tell mother that I will not abide by her request to bring child back at noon and bring him back at 5pm instead what recourse does she have and what is the risk to me in doing so?

Please tell me what you'd recommend doing in this case. My real need is to not have to deal with this constant bickering about what our agreement says!

Thank you

[ccmidaho]

Thanks, I want to clarify one thing.

We've been going back and forth all week. In every communication I have had with her, I have stated that I will bring child back at 5pm. In every communication that she has had with me, she has said, you will bring him back at noon or you will not be "permitted" a vacation day. So I have maintained from the beginning what I plan on doing. Her final communication to me was, if you don't bring him back at noon, you can't have the vacation day.

I am going to go through the process to clarify the drop off time by filing a motion although I hate to go back to court so soon, just when I thought I was done with this mess. I can only assume this will take another 6-8 months, just like the last motion did.

So I guess I'm a little confused by what to do for this particular vacation day which is coming up soon. Obviously the last thing I want to do is anything that would jeopardize myself. I follow our agreement to the letter as I understand it.  

1. Would you recommend that I keep child until 5pm which is what I've stated all along? Or would you just recommend I just "give in" and take child back at noon?

2. This same issue is going to come up probably 4-5 more times by the time a motion can be heard. Is this going to set some kind of precedent that when we disagree on vacations drop off times, she gets to decide until a motion can be decided?

[step_momma_2boys]

Idaho court order for our
>vacation section. Child is two years, 2 months.
>
>"We agree that each parent shall have up to fourteen (14) days
>vacation within each calendar year, so long as thirty days
>written notice (of those dates) is given the other parent,
>provided that until child turns 5, for vacation periods of
>less than four (4) overnights, fourteen day advance notice is
>sufficient. Subject to this, when less than thirty days
>written notice is given, and vacation plans interfere with the
>other parent's schedule we agree we cannot exercise our
>vacation days with child unless we have the other parents
>consent.

First, the agreement does say you need to give 30 days notice, but until child is 5, only 14 days notice is sufficient.  Then, PP states that subject to that, IF LESS THAN 30 days is given, then consent from other parent is needed if it conflicts w/ thier plans.

That is how I would interpret what your PP says.  I think if drop off times are a problem, then you should definitely have it clarified.

[socrateaser]

>1. Would you recommend that I keep child until 5pm which is
>what I've stated all along? Or would you just recommend I just
>"give in" and take child back at noon?

It doesn't happen very often, but the mystery poster step_momma_2boys has actually interpreted your order correctly, and I got it wrong.

With less than 30 days notice, you need the other parent's consent to exercise vacation days.

More to the point, you don't really have much to clarify. Based on my more careful read of the order, it's pretty clear already, and a little silly, because if the purpose of notice is to remove the other party's ability to refuse consent, then this text re the 14 days with the consent of the other parent is pretty much nullified.

I guess I'm getting old, because my reading comprehension sucked on this one!

And, ordinarily I would have deleted step_moma's post, for practicing law without a license, but since she corrected me, I'll let it stand as a demonstration that nobody's perfect -- not even Socrates.

Hey, didn't I drink hemlock and die 3,000 years ago? How come I'm doing family law today? "I'm so confused." -- John Travolta, as Vinnie Barbarito, "Welcome Back, Kotter"

[ccmidaho]

Wow, this is just one more thing I asked my attorney to put in for me (the 14 day notice on short vacations) that he didn't do correctly. I have always thought only 14 days were required for the facts I provided and my attorney at the time confirmed this.

So, probably a stupid question, but is there is any recourse for me to ask the judge to change it to what I intended to agree to then?  Something like, the final sentence nullified the 14 day notice portion, but the intention was clear in terms of what I thought I agreed to, therefore can we change it?

I'm reaching, I realize - its just that I counted on my attorney on this one so just wondering if its a lost cause to even worry about it.

Thanks!

[socrateaser]

>Wow, this is just one more thing I asked my attorney to put
>in for me (the 14 day notice on short vacations) that he
>didn't do correctly. I have always thought only 14 days were
>required for the facts I provided and my attorney at the time
>confirmed this.
>
>So, probably a stupid question, but is there is any recourse
>for me to ask the judge to change it to what I intended to
>agree to then?  Something like, the final sentence nullified
>the 14 day notice portion, but the intention was clear in
>terms of what I thought I agreed to, therefore can we change
>it?
>
>I'm reaching, I realize - its just that I counted on my
>attorney on this one so just wondering if its a lost cause to
>even worry about it.
>
>Thanks!

Well, if you could get your attorney to agree on the court record that the language is vague and was not intended to be interpreted in the manner, then the judge might order it (mainly to avoid having your attorney sued by you for malpractice), and sweep it under the rug.

But, if you're purely going to try to argue adverarially that the text does not mean what it says, you'll probably lose, and your only recourse will be to sue your attorney for malpractice, because you relied to your detriment on his/her advice.

And, the bad news on this is that your attorney may be safely outside the statute of limitations for a malpractice suit already. I don't know ID law, so I can't say if the window is still open or not.

[step_momma_2boys]

Dear Socrateaser,
  I apologize for intruding on your board.  In the future, I will refrain from posting here on other's messages!

Sincerely,
step_momma_2boys

[socrateaser]

>Dear Socrateaser,
>  I apologize for intruding on your board.  In the future, I
>will refrain from posting here on other's messages!
>
>Sincerely,
>step_momma_2boys

No reason to apologize. You saved the poster from my bad advice.