My ex-spouse and I share 50/50 legal/physical custody of our two children. We follow a one-week alternating custody schedule and both agreed to a right of first refusal in our stipulation, which is vague at best.
I frequently work nights and she exercises her first right of refusal by watching the children even though my girlfriend is around to watch the kids. However, my ex is using this right to an extreme in asking to have them every time I am not around for any amount of time.
On nights I work from 6 p.m. to 6 a.m., so only three hours of this time would be the children’s sleep time and therefore not “meaningful time with their mother.”
So can I argue that the ROFR would not apply in this case?
I am not licensed to practice law in your state and therefore cannot provide you with specific advice regarding laws or procedures in your state.
Your question is difficult to answer without knowing the actual language of your stipulated agreement, both regarding the right of the first refusal and the other parenting time provisions.
For instance, whether or not the language you reference regarding “meaningful time” is included may impact how you approach the situation.
In Indiana, where I practice, our right of first refusal, as stated in the parenting time guidelines, does not apply if another household member is available to be with the children. If that is also the case in your state, she might be able to stay with the children rather than being required to allow their mother to take them, assuming you didn’t bargain that away in your agreement and your girlfriend lives with you.
Regardless of the laws in your state and the language in your agreement, you may want to consider modifying the language of the agreement to address these specific issues more clearly. I would suggest you consult with an attorney in your area to review your agreement and discuss how this issue should be treated and how the law should be applied in your situation.