Ask a Lawyer: How do “rights of first refusal” work when there is a stepmother involved?

Question:

I would like some information on first rights. My fiance has joint custody of his daughter from a previous relationship. He gets the child one week and his ex gets her the next. He agreed to first rights in the custody agreement. My understanding of the Parenting Guidelines is that if he has to hire someone to care for the child on his week while he is at work, he must first give the mother the option for additional parenting time. Since we live together and I am available to keep her at home while he is at work, does he have to offer her first rights? We have been told that Indiana doesn’t even have a first right statute any longer, but he put it in the custody agreement. She is so hostile that she wants him to not even leave the child with me for his doctor’s appointments. She is constantly causing problems and as soon as we can afford to obtain an attorney we would like to take her back to court to have first rights taken out, to change the custody from one week to two at a time, and to have the court explain to her what reasonable and flexible means. We have tried to keep his daughter at home with me while he is at work, but she causes so much trouble that he relents and lets her take her. Neither one of them work 9-5 jobs. He works 1pm – 7pm, and she works at a BP gas station so her schedule can change from day to day. Even though she does try to keep a schedule on his week so that she is always available to have the child when he is at work. To show how unreasonable she can be – when his older daughter(child’s half sister) graduated, she absolutely refused to extend any additional time so that we could take her with us. It was his week when we left on Wed but the graduation was not until Sat. This was also Memorial Day weekend (and it was her holiday). He offered her Fourth of July and all make up days for the extra time that we would have her. She basically told him that since I was going that he could not take her. That if his parents (who live in Alabama) wanted to take her that they could, but she didn’t want me having any extra time with her daughter. It didn’t matter that it was her sister’s graduation. Even though he usually tries to get along and not rock the boat, we took her with us any way. It was pure hell when we got back. We save all of the voicemail messages that she leaves and record them on cassette tapes in anticipation of going back to court. Thanks for your help. Linda

Answer:

I am not licensed in IN and therefore cannot answer your question specifically to the laws of that State. We often put rights of first refusal into parenting plans, though I often do not recommend using them if the parents are unable to communicate. My typical language used for a right of first refusal includes a timeframe of 2-4 hours of estimated time that the child would be with a third party before the need to call the other parent kicks in. However, if the terms of right of first refusal is active, you as the fiance (or step parent for that matter) are a “third party” and the mother should be called before leaving the child with you. With regard to your Memorial Day incident, I believe the Mother was justified in giving you “hell” upon your return. It is not justified to take her weekend regardless of the reasons behind her refusal to trade weekends. She is not obligated to explain her reasons for refusing to trade holidays. The court order controls. It would be nice if people could always work together, be flexible in trading weekends or altering pick up times, but if the parties are unable to AGREE to a change, it is not justified that your fiance just take her weekend. Be careful returning to court if mother can show more incidents like you describe. It might end up that the father has less than fifty-fifty at the end of that fight.
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