Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell, P.C. attorneys:
- There is a Right of First Refusal clause in our divorce decree. Can my ex legally get our child every weekend night I’m working because of this clause?
- Does my child support obligation modify or stop automatically if my un-emancipated daughter moves in with me?
- Do I or my child’s mother have a responsibility to pay child support until our daughter turns 21?
There is a Right of First Refusal clause in our final judgment. I have my daughter for part of summer vacation and my ex lives about 35 miles away. I usually have to work weekend nights from 10-2 a.m. but I have her care covered for those times I’m at work, but my ex is threatening to use the right of first refusal clause. Can she legally get her every weekend night I’m working?
A Right of First Refusal is usually intended to maximize both parents’ placement time. The thought is that instead of a child spending time with a third party, the child should be with a parent. How enforceable the clause is depends on your jurisdiction, how it is drafted and the specific facts of your case.
The reason the ROFR is part of the judgment can vary significantly based on the case. The reason or intention of the parties may play into how enforceable the clause is. For example, a mother may travel over weekends often for work, and she has her parents, the children’s grandparents, provide care for the children when she travels. However, the father is ready, willing, and able to care for the children during most, if not all of the time that the mother travels. The right of first refusal would allow the father to spend more time with his children.
In other cases, the clause may help parents who are now divorced continue to co-parent and stay involved. It may be a tool to encourage parents that are now divorced to contact each other instead of contacting a babysitter. Often courts will find it unreasonable that one parent would rather pay for child care or a babysitter to avoid the child spending additional time with the other parent. The clause may also be a way to ensure that one parent notifies the other parent ahead of time that he or she may need assistance with care instead of relying on the other parent without prior notification.
When the clause is challenged, often courts will set a time frame that the clause would apply to, such as 24 hours. If that is the case, then if one parent is unable to provide care for a 24 hour period, that parent would offer the time to the other parent. Other times, the timeframe is shorter, such as four hours, or whatever might fit the case.
It would make sense that in your case, the timeframe would be longer, since the time that you are away from the children they are asleep and there is some distance between you and the other parent. Even if she did provide the care while you worked, that does not mean she would be entitled to extra time outside of the 10 – 2 a.m. timeframe. Any time that would be offered could arguably be not “meaningful” because the children would not be awake during the time. It seems as though it would be more inconvenient for her to make arrangements to be with them during that time.
However, how enforceable your clause is depends on the specific clause, your case, and the specific rules in your jurisdiction. I do not practice in Florida, so I cannot inform you as to the state’s specific laws. Cordell & Cordell has attorneys that are licensed and located in Florida, and they would be happy to discuss your case with you.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
My daughter is 18 and lives with her mother who I pay child support to. My daughter wants to live with me after she graduates high school. Is it now her mother’s responsibility to pay me support until she is 21 because my daughter is going to college in the fall? I was told I couldn’t just petition to have my child support stopped that someone was legally responsible for child support payments until my daughter turned 21. Is that true?
You have asked: (1). “Does your child support obligation modify or stop automatically if your un-emancipated daughter moves in with you?” and (2). “Do you or your child’s mother have a responsibility to pay child support until your daughter turns 21?”
To answer your first question, no, your child support obligation will neither be modified nor terminated automatically. You will need to petition the court to modify your child support obligation. Until the Court modifies and/or terminates the child support obligation, you arguably have an obligation to continue to make regular child support payments to the obligee, your child’s mother. You certainly can seek a reimbursement of monies paid out in the interim. In petitioning the Court for a modification of child support,
Indiana Code § 31-16-8-1 governs the Modification or Revocation of child support orders. Under this section, modification of a child support order may be made only upon (1). A showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2). A showing that a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed. So, if there has been a “substantial and continuing” change in circumstances that makes your current support obligation unreasonable, or if you are over or underpaying by more than 20% and more than a year has gone by, the Court can and will modify your child support obligation. The fact that your daughter will be living with you is likely a substantial and continuing change in circumstances, which would warrant the modification and/or termination of your child support obligation.
To answer your second question, while it is true that parents in Indiana have an obligation to support their children until age 21 or emancipation, that support does not necessarily come from the form of an ongoing child support obligation. It is common to run a child support calculation in which neither party owes the other party a support obligation. Further the extent to which your daughter lives outside of both your and her mother’s residence while in school could affect the amount of child support owed from one party to the other. Finally, parties may stipulate or the Court may order a deviation from the recommended child support or post-secondary education obligation if such a deviation is justified.
Although I practice law in Indiana, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell, P.C. does represent clients in Indiana. Thank you for submitting a question to Cordell & Cordell, P.C.
Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.
5 comments on “Right of first refusal clause; age of emancipation”
I share 50/50 custody but don’t exactly get along with their mom, I try. We go Friday – Friday. My mom is coming to visit for a few days and I want to keep the kids out of preschool on the Friday that I would normally pick them up at 5pm but the mom is saying no. Can I say I am excersing ROFR since she has them in preschool due to work or should I use 1 vacation day out of my 3 weeks?
Please be advised that I am unable to give you specific legal advice. I can only offer general legal help though, my knowledge is based on Missouri family law where I am licensed to practice.
While I do not know all of the details of your case, there are legal mechanisms in Missouri by which you can attempt to see your grandchildren. According to Missouri statutory law, grandparents (post-divorce) can be granted visitation by the court if they have been unreasonably denied same for at least six months within the twenty-four month period immediately preceding the filing of a petition for grandparent visitation.
In other words, a grandparent can file said petition with the court requesting visitation of their grandchildren, as long as they have been unreasonably denied for the aforesaid six months or more.
Alternatively, if a grandparent does not wish to file a petition, upon their written request to the court, the associate division of the circuit court may order mediation with any party who has custody or visitation rights with the minor child and appoint a mediator.
Overall, I recommend that you speak with an attorney who can advise you more specifically in light of the unique details of your case.
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Grandparents visitation rights
My daughter doesn’t not want us to have any contact with her ex-husband. We have known him and his parents for over 40 years. Therefore, I refused her demand. Mainly because I felt it would be in the best interest of her two children to know that their grandparents still like their dad. There is so much anger and hatred. I just do not want to add to it by adding more confusion and stress in my grandkids life. As a consequence, she has used her “right of first refusal” not to allow their father to bring the children over for a visit unless he stays with them. Obviously, this negates any sleep overs which they used to have so very often at our house. Any comments will be appreciated. Do I have any legal grounds to see our grandkids?
As I have not read your parenting time agreement with your ex-husband, and do not have all the facts of your case, I can only speak in generalities based on my experience with custody agreements and the right of first refusal in other Indiana cases.
Your right of first refusal generally doesn’t automatically transfer to a new spouse/step-parent of your child if he will not be present AT ALL during the visit with the child, unless specified in your parenting time agreement with your ex-husband.
However, if he is going to be present for a portion of the time, he could have his current wife care for your child for the time he is temporarily not present (i.e. at work, the gym, etc.). Essentially, he would still be exercising the right of first refusal, but he would have his current wife care for his child until he gets home.
In cases where he would be out of town, or not present with his child for any of the parenting time, then he probably could not exercise his right of first refusal in that case. If he would like your current wife to be able to exercise her own right of first refusal in those cases, he would probably need to seek to alter the parenting time agreement he has with you.
If you would like to discuss the issue further, Cordell and Cordell has men’s divorce lawyers located nationwide and we would be happy to schedule an initial consult with you to address any other questions or concerns you may have for your specific case.
Leslie Lorenzano is a Staff Attorney in the Indianapolis, Indiana office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Lorenzano is licensed in the state of Indiana and the U.S. District Court Sothern District of Indiana. Ms. Lorenzano received her Bachelor of Arts in Sociology from Purdue University, and her Juris Doctor from the University of Arizona – James E. Rogers College of Law.
Right of First Refusal
There is a Right of first refusal clause in our final judgment. On Thursdays and Fridays, my son is supposed to be picked up from preschool by his father. However, his father now has a new work schedule. He now works nights, meaning when my son is at school, my ex is home, when my son is home, my ex is at work. So now, on Thursdays and Fridays, my son would now be picked up by his stepmother and taken back to her home to be fed, bathed, and put to bed by her, all before his father even gets home from work. Why should my son spend all that time with his stepmother, when I, his real mother, am ready, willing, and able to do it myself? Can I use the Right of First Refusal in these situations?