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  1. #1
    Join Date
    Dec 2014
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    Default Right of First Refusal During Uninterrupted Parent Time

    My question involves a child custody case from the State of: Utah.
    I have physical custody of my child and shared legal. My ex has has our daughter overnight 8 nights a month. I also encourage him to take her when I am working (I work from home) when his schedule allows.
    My ex is currently using his un-interrupted week w/ our 3 year old daughter. Our CO states each parent must offer the other parent FROR if they are away from the child for 3+ hrs. If the care extends past 9pm the parent electing FROR, may keep the child overnight & return the child by 9 AM. My ex works at 7 PM & comes home around 3 or 4 AM (He is a bartender a couple nights per week.) He is insisting on having his girlfriend babysit our child while he is working instead of allowing me to care for her even though I live 10 mins away. When I brought up our CO he stated that FROR would not apply during his uninterrupted week even though he is working and will be away from our daughter. He sites the State's definition of "uninterrupted" (parent-time exercised by one parent without interruption at any time by the presence of the other parent) as the reason he doesn't have to give FROR even though it is something we mutually agreed upon in mediation and specifically had it added to our court order. The same state statute also lists "Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the other parent, if willing and able to transport the children, to provide the child care."
    My understanding is that in the State of Utah, the statue that includes the definitions of verbiage is standard in court orders but FROR is not, my belief is that FROR would supersede the definition of uninterrupted as the "interruption" is coming from his choice to work during the week, he scheduled with our daughter. Am I wrong on this? I provide him with every opportunity for FROR, he refuses to do the same and at least 1-2 times a month I find out that he did not provide me with the option of FROR after the fact, usually by a friend we have in common who frequents his bar.

  2. #2
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    Uninterrupted should actually trump ROFR. If Dad, his girlfriend and your child went on vacation over the weekend, and Dad has to go into work for several hours - do you think ROFR should kick in?

  3. #3
    Join Date
    Jul 2012
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    So Cal
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    I don't think this is the issue you want to get all fussy about, quite honestly. If dad has to go into work for a few hours during his uninterrupted (Doggie interpreted it accurately - uninterrupted means just that) parenting time, what's the harm in his girlfriend watching your little one? Unless she presents an immediate danger to your child, you shouldn't turn this into a fight.

    Quite honestly, from the tone of your post it sounds as if you and dad have been co-parenting reasonably well. What if dad was leaving kiddo with his folks while at work? What happens when you eventually remarry and dad eventually remarries? How will you treat ROFR then? I'm not asking this in a snarky way, it's just a reality.

    You have 15 more years of parenting together. During that time you can expect that both of you will, in all likelihood, meet other people, remarry, and have more kids. Work together, pick and choose your battles wisely, and treat dad's time with your little one the way you'd want dad to treat your time with her.

    I've never cared for ROFR clauses because they can set up unnecessary arguments and future litigation if the parents get too nitpicky.

  4. #4
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    Feb 2011
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    Virginia
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    Is the child not sleeping for most or perhaps all of this time period?

  5. #5
    Join Date
    Dec 2014
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    2

    Default Re: Right of First Refusal During Uninterrupted Parent Time

    Girlfriend has a DUI from three years ago as well as 8 felonies for Rx drug fraud from 4 years ago. I'm not comfortable with her being around my child in general. My Ex says she is a good person and I should trust him. Which I don't.

  6. #6
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    .. do you realize what you're saying?

    She'd be fine as long as you get ROFR?

  7. #7
    Join Date
    Oct 2006
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    Quote Quoting Dogmatique
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    .. do you realize what you're saying?

    She'd be fine as long as you get ROFR?
    I think what she is saying is that she is not comfortable with the girlfriend being around the child at all, let alone being alone with the child. I actually can understand why. The combo of DUI combined with RX drug fraud could lead to valid concern that the person caring for the child would be in a sober enough condition to provide adequate care.

    This is one where I really ride the fence. They have an ROFR in place and it should be honored. She has every right to take dad to court for contempt for not honoring the ROFR. At the same time, based on dad's working hours and the fact that the child would be asleep for most of that time, it seems a bit unfair to invoke the ROFR. Yet again, if dad is working until 3 or 4 AM and then coming home and sleeping for 8 hours, then what point is there for the child to be at dad's from about 6:30PM until noonish the next day?

    I am not sure what I would do in mom's shoes.

  8. #8
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    OP wrote:

    "Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the other parent, if willing and able to transport the children, to provide the child care."
    From that wording - and Mom is going from statute - does it not seal the issue in favor of Dad? There is no mention of the word "shall" and that being the case, all Dad has to do is inform Mom that he's going to be out of town...with the child. Or, the child is staying with Grandma. Or, the girlfriend who lives a town or so away.

    I'm withholding comment with regards to the girlfriend.

    (except to ask that if the girlfriend's presence is a problem, why was it not addressed before now? That would make more sense, surely?)

  9. #9
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    Default Re: Right of First Refusal During Uninterrupted Parent Time

    Quote Quoting REM
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    Our CO states each parent must offer the other parent FROR if they are away from the child for 3+ hrs. If the care extends past 9pm the parent electing FROR, may keep the child overnight & return the child by 9 AM. My ex works at 7 PM & comes home around 3 or 4 AM (He is a bartender a couple nights per week.) He is insisting on having his girlfriend babysit our child while he is working instead of allowing me to care for her even though I live 10 mins away. When I brought up our CO he stated that FROR would not apply during his uninterrupted week even though he is working and will be away from our daughter. He sites the State's definition of "uninterrupted" (parent-time exercised by one parent without interruption at any time by the presence of the other parent) as the reason he doesn't have to give FROR even though it is something we mutually agreed upon in mediation and specifically had it added to our court order.
    If in fact your court order explicitly states that the right of first refusal applies even during uninterrupted parent time, then that language would govern the situation. As we have no access to the order, it would be sensible for you to discuss the order with the lawyer who assisted you during your divorce case.
    Quote Quoting REM
    The same state statute also lists "Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the other parent, if willing and able to transport the children, to provide the child care."
    Are we talking about the statute or the order? They are not even close to being the same thing.

    The statute you quote, Utah Code, Sec. 30-3-33(15), is part of a set of "advisory guidelines [that] are suggested to govern all parent-time arrangements between parents". The actual language that governs these issues is that you will find in your custody order, not that statute.
    Quote Quoting REM
    I provide him with every opportunity for FROR, he refuses to do the same and at least 1-2 times a month I find out that he did not provide me with the option of FROR after the fact, usually by a friend we have in common who frequents his bar.
    That is an issue that you can raise with the court, should you choose to do so.
    Quote Quoting llworking
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    I think what she is saying is that she is not comfortable with the girlfriend being around the child at all, let alone being alone with the child.
    That, also, is a separate issue that can potentially be raised through the custody court, assuming this is new information.
    Quote Quoting Dogmatique
    View Post
    From that wording - and Mom is going from statute - does it not seal the issue in favor of Dad?
    The statute is a recommended framework for custody orders. The actual order can depart from that framework.

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