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Custodial mother concerned that father leaves child with father's parents and father's wife during most of his custodial time


Your Question:
The father of my 6 year old son and I were never married. He lives in the midwest, I live in California. We have joint legal custody, I have sole physical custody and he has visitation rights.

The father is a pilot and flies for free and has visitation for three consecutive overnights twice a month per our court order, three weeks summer vacation. Father typically exercises three days out of eight per month due to overnight expenses (hotel, food, etc.). Father has average of sixteen days off per month.

I have right of first refusal in our court order (a four hour window). Father ocassionaly visits for one night versus the allotted three and flies back to domicile and leaves child for the remainder of visit with grandparents to save on hotel expense and child support. Also, due to father's flight schedule, during summer vacations the child is with stepmother for four days at a time while father works (flying and staying overnight in other parts of the country) leaving child alone with step mother.

Question: when does my right of first refusal become effective and is this something that I can REASONABLY argue in front of a judge?

What are the ramifications of not abiding by the court order or violating my right of first refusal?

Thank you in advance for your review.

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My Answer:
Hi,

Thanks for writing.

In another email (not posted), you specified that "the language [of the court order] states that if the child is out of the care of either parent for more than 4 hours, the other custodial parent shall have right of first refusal."

You also let me know (not posted) that you don't any problems necessarily with the paternal grandparents (i.e., in fact, you arrange for the child to see them a couple times a week) or the stepmom, but mainly feel that if the father is shirking his custodial time with the child, you should have first dibs on caring for the child.

You also expressed (not posted) that it's not fair for the father to benefit via reduced child support but doesn't put in his custodial time (i.e., in California, more time with a kid means less child support).

Okay... your main question is, "When does my right of first refusal become effective and is this something that I can REASONABLY argue in front of a judge?"

Two things apply here, at least as far as the judge is concerned: best interest of the child, and existing court orders.

Per existing court orders, if the language is exactly what you told me, the dad should have first opportunity to care for the child when you can't for 4+ hours, and you should have first opportunity if the dad isn't available for 4+ hours.

It doesn't seem like that is happening on at least one side, and I don't know about the other side.

I don't think you face much of a challenge regarding enforcement when the child remains local. But it's simply not practical to enforce such a clause on the summer vacations when the child is far away from you. You're gonna fly the child back for a day, then return him to the father 24 or 36 hours later? Come on, that's silly.

So, the question remains, what do you do?

In one sense, the parents should be the one raising this child. In another sense, you're admitting that you don't have problems with the caretakers that the father is assigning during his custodial time.

Further, regarding child support, it's no additional burden on you financially if the father arranges for caretakers during his custodial time (i.e., it's not like YOU have to drop everything to care for the child during dad's time). Many parenting plans have a clause that say each parent is responsible for arranging care for the child during their respective custodial times, and some parenting plans (like yours) say that the other parent has to first be given the opportunity.

Now, in terms of finding a good legal remedy, your situation is cloudy.

You have not outlined WHY it's bad for the child to stay 2 days with grandparents, or 3 days in the care of stepmom. I think that's where you really need to put some thought into it. You haven't addressed the "best interest" issue.

In wanting modifications of a parenting plan, a parent must first identify what's wrong (i.e., relevant to the welfare of the child), and then identify a solution. You haven't done the first part.

In terms of legal options, you can try to go for a contempt motion. If your language is as tight as you say, he's violating the court orders. However, your challenge will be to prove he's in contempt. You'll have to prove - with no help from him - that the child was entirely outside of the father's care for 4 hours on the dates you allege. What does "out of the care" mean? What if the father called him at least once every four hours to ensure the child was eating well? That could potentially be viewed as aiding in the care of the child. All of that said, I don't see contempt as your best avenue.

Instead, I'd try to modify the parenting plan to reflect the father's historical availability. That means you need to have excellent and credible documentation. I think a court would find it reasonable that if the father wants to exercise custody every couple weeks, the father damn well better be around for most of that time.

Perhaps your "best interest" argument would be that it's not beneficial to a child to have such a wide variety of caregivers who each have their own rules and discipline styles.

So, instead of worrying so much about the right of first refusal, you can introduce new language into the parenting plan akin to, "If during any of father's designated custodial time, father leaves the state where child is located and father will not be returning within 16 hours, father shall first transport the child back to the mother."

That way, if he wants to exercise custody in your town, he can do the whole thing himself, or he must transfer custody back to you prior to leaving.

Likewise, during the 3 week summer period, if father needs to work during the day, he has flexibility. However, if he's gone for extended time, child must come back to you.

Above and beyond right of first refusal, that language more clearly sends the message, "If you want to be a dad, great, and it's okay if you need to work a little. But if you're gone for days, send the kid back to mom."

I think a judge would find that proposal reasonable, but you'll really have to strengthen the "best interest" argument.

And drop the child support stuff until the time that the child is actually IN YOUR CARE more than outlined in court orders. If/when that occurs, you go back to court and say, "Support was based upon 70% in my care. In truth, child has been in my care 90% during the past six months, per this credible documentation. So, let's modify support."

Eric





This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.


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