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Roger
Roger, Attorney
Category: Family Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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What does shall have right of possession actually mean Does

Customer Question

What does "shall have right of possession" actually mean? Does it mean they MUST or HAVE TO take possession of the children?
Submitted: 3 years ago.
Category: Family Law
Expert:  Roger replied 3 years ago.

Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney here to assist you.

 

No, this means that the person shall have the RIGHT of possession. The person has the choice whether or not to exercise the right of possession - but the right to choose belongs to the person.

Customer: replied 3 years ago.
Thank you for the prompt reply. I now understand what it means. But if they choose to exercise their right of possession, does that person have to follow the guidelines "to the T" in the divorce decree? For example, on the weekend it states they have right of possession from when the children exit school, then have to return them on Sunday by 6pm...can they choose to pick them up later or pick and choose dates/times on the weekend (when there is no mutual agreement beforehand)?
Expert:  Roger replied 3 years ago.
Absolutely. If the parent exercises his/her right of possession, it must still be within the guidelines set by the court.
Customer: replied 3 years ago.
Thank you again for another quick reply. Thank you for clarifying that rule. I have one more question. If the person states they will exercise the right of possession, lets say for a Thursday. The decree states they shall have right of possession on Thursday from when school dismisses until school begins the next day. So if the person call and says they will pick them up, but cannot until say 5pm, because they don't get out of work until then. The children have to go to a childcare service because the other party has to work past the school dismissal of 3pm. Who is responsible for the childcare fee, if the person exercises the right of possession but has to show up later than the time set in the divorce decree. NOTE: Child care fees are not included in the monthly child support.
Expert:  Roger replied 3 years ago.

Sorry for the delay.....

 

In this case, the issue would be whether or not the child care fee would be something the custodial parent would have incurred anyway.

 

For instance, if the non-custodial parent told the custodial parent that he/she would not be exercising his right to visitation on Thursday at all, would the child have been sent to child care?

 

If yes, then the non-custodial parent isn't likely to be responsible because the custodial parent was sending the child there anyway.

 

If you can't agree with each other on this, you can always file a motion with the court for clarification.

Customer: replied 3 years ago.
No worries on the wait. Thank you again for replying - if I can get everything cleared up I will attach a bonus. There was a conversation via mobile phone text message, with the custodial parent asking if he was going to excercise his right, but it needed to be at 11:30am instead of the normal 3:00pm. In the decree this "early dismissal" is a stipulation and states the weekend possession will start when the school dismisses (therefor 11:30am) until Sunday 6pm. The non-custodial parent stated, "I should be able to get off early to pick them up". Upon a discussion late last night he said he was unsure of what time he will be able to get off work. So, if he is deciding to excercise his right of possession for the weekend, and it is suppose to start at 11:30am then is he liable for the cost of child care, thus she could have made other arrangements?
Expert:  Roger replied 3 years ago.
Unless the divorce decree says he's responsible for child care costs if he doesn't begin his visitation exactly when he is able to, I don't think this cost would pass to him. For instance, if he has the right to the child at 12:00 on Friday, but he doesn't pick up the child until Friday at 5:00, I don't think he would be required to pay for 5 hours of care because it's not mandatory that he exercise visitation at all. Again, the order says he has the right to visitation - it's not mandatory.
Customer: replied 3 years ago.
So basically she would have to tell him to stick to the written rule in the decree or not take them at all. Therefor, there is no other mutual agreement, and he still wants to pick them then it would be on him to find care until he could pick them up, correct? I will have to find out about child care costs, as she did mention to me that she called her divorce attorney and they stated that child care costs are not included in the child support, but need to see if he needs to help with child care costs due to both have full time jobs that extend bast the end of the school day. She might have mentioned that he needs to pay half because of this.
Expert:  Roger replied 3 years ago.

I think that's exactly right. If he's not going to honor the arrangement as written, just advise him that he will be responsible for any costs she incurs because of his delays, etc.

 

If he refuses, I would recommend that she go back to the judge and ask that this be added to the order.

Roger, Attorney
Category: Family Law
Satisfied Customers: 26702
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 10 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you very much for your patience in this matter! You have been very helpful. I will tip you for your service.
Expert:  Roger replied 3 years ago.
Glad to help. Good luck.

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