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Lady Themis
Lady Themis, Lawyer
Category: Family Law
Satisfied Customers: 7751
Experience:  Divorce, child custody, child support, etc.
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Colorado My husband is sole custodial parent of 11 yr old.

Resolved Question:


My husband is sole custodial parent of 11 yr old. Mother is just released from parole after her second prison sentence for drug crimes. They have just drawn up new MOU releasing her from supervised visitation and granting her 2 overnights 2x per month. Previously supervision was provided by grandparents.

They had a verbal agreement that it was permissible to pick child up at 5pm rather than six at the end of visitation with Non cust. parent so that he may eat dinner at primary home. Mom was annoyed at Dad this weekend and revoked agreement to pick up at 6, stating that the MOU should be followed exactly.

My husband replied that to ex that if that was the case, she should be the one picking up the child for her visitation time. She works for her parents and has been intentionally scheduled to work on those nights so that grandparents can pick up and spend time with the child.

Regarding transportation the MOU states:
"The parent gaining physical possession of child (the receiving parent) shall provide transportation for parenting time, unless both parties agree otherwise."

Does she have a right to send someone other than herself to pick up child? There are no rights to first refusal clauses. Father believes it important to assess her sobriety although no clauses except his right to call for a drug test exist in the current plan.
Submitted: 7 years ago.
Category: Family Law
Expert:  Lady Themis replied 7 years ago.

Thank you for your question.


Going strictly by the language of the MOA, it is difficult to say whether she can send someone other than herself to pick the child up, as the statement is merely that she shall provide transportation. It doesn't say that she should be the person to pick the child up, although that may be inferred. It may be appropriate in this case to seek a modification of the order to clarify the issue.



Customer: replied 7 years ago.
Her lawyer sent the following, which she forwarded to us:

Your understanding of the situation is correct. Altho the provision in the agreement is admittedly not as specific as it could have been, it’s intent was to clarify who was responsible for providing the transportation, and where the exchanges would take place. If you cannot perform the pick-up yourself, you can certainly arrange for someone known to your son to do so, such as your mother or significant other, particularly if your intent is to allow them to spend quality time w/ your son until you get home from work. Moreover, there is no first right of refusal to provide day care clause in your paperwork, as you both wanted each other to allow extended family to spend time w/ your son, so he can’t use that as an excuse either; indeed, the absence of that clause supports your interpretation of the exchange provision.

Is it true that the absence of the first right to refusal clause guarantees her ability to send someone other than herself to pick up? My husband feels like the issue should go back to mediation, but what are our legal options until new agreement is made?
Expert:  Lady Themis replied 7 years ago.

I disagree that the absence of a right of first refusal clause automatically works to interpret this provision as allowing anyone to pick up the child. However, since the language isn't clear, it could be interpreted either way. If your husband refuses to give the child to the person who picks him up, he could be subjecting himself to contempt charges, particularly given her attorney's opinion on the subject. Unless your husband legitimately fears for the child's safety, he should not deny the pick up.



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