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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37855
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I have a three hour right of first refusal... with that my

Customer Question

I have a three hour right of first refusal... with that my ex husband says that if I am unable to be with my son immediately when he gets out of school he can pick up my son until I am out of work. The time frame is an hour and a half at the most. My domestic partner is available to watch him till I return from work... do I have to let my ex husband take my son or can I tell my ex no and allow my domestic partner to watch him? To me the 3 hour clause mean: if I am available to my son in 3 hours or less I don't have to let my ex watch him, I can have someone else watch him. Please advise me if this is correct or am I misunderstanding the order.
Submitted: 2 years ago.
Category: Family Law
Expert:  Phillips Esq. replied 2 years ago.
Hello: This is PhillipsEsq. I am a licensed Attorney and I will be assisting you today.
In order to properly answer this question, a complete section of your Order/Agreement dealing with the "three hour right of first refusal..." needs to be posted here. Kindly post it so that I can take a look.
Customer: replied 2 years ago.
I attached the order
Expert:  Phillips Esq. replied 2 years ago.
Thank you for your quick response.
Your initial post:
I have a three hour right of first refusal... with that my ex husband says that if I am unable to be with my son immediately when he gets out of school he can pick up my son until I am out of work. The time frame is an hour and a half at the most. My domestic partner is available to watch him till I return from work... do I have to let my ex husband take my son
Response 1: No, you do not.
or can I tell my ex no and allow my domestic partner to watch him?
Response 2:Yes, you can.
To me the 3 hour clause mean: if I am available to my son in 3 hours or less I don't have to let my ex watch him, I can have someone else watch him. Please advise me if this is correct or am I misunderstanding the order.
Response 3:You are correct. Unless the Order specifically states that you cannot let anyone else watch him, which it does not say, then you can let your partner watch him until you are back.
Customer: replied 2 years ago.
Your answer for my questions appear to be wrong...the judge sent me a letter saying I was wrong.... I just don't get it.
Expert:  Phillips Esq. replied 2 years ago.
I am sorry, that you feel that way. I answered based on my interpretation of the document that you sent to me. I stand by my response.
The Judge is the ultimate decisionmaker. However, that does not mean that the Judge is always right. That is the reason that there are appeals Courts to appeal from the decisions of lower Court Judges.
Customer: replied 2 years ago.
I'm stressed about this whole mess...thank you for your time. Have a great day !
Expert:  LawTalk replied 2 years ago.
Good afternoon,

New professional here. I'm Doug, and I'm very sorry to hear of your angst. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

I read the letter from the Court Commissioner which you attached to the question thread and it doesn't appear to be at odds with your understanding of the three hour right of first refusal.

Why do you believe that it is?

Doug
Customer: replied 2 years ago.
The judge said if I didn't allow extra time I would be in contempt.. : (
Expert:  LawTalk replied 2 years ago.

Good afternoon,

I empathize with your situation and having been in your position in years past, I certainly understand your angst. While I can’t change the way things are, perhaps if I explain what happened and why, dealing with it will not be as stressful.


It is possible that your frustration may come from not having fully understood the original placement order, but I can assure you that nothing appears to have changed in terms of what the court expects from you.

First of all, extra time has nothing to do with the right of first refusal. They may be next to one another on the order, but they are distinct and separate obligations/rights.

The letter specifically addresses the terms of the right of first refusal. However, it does go on to say that the court contemplates that there will be additional time that your ex would be allowed to spend with your son and you have to be reasonable in accommodating some of those requests.

Now it may be that he requests to pick your son up form school even if you are going to be an hour late, and if that is what is happening, then you need to allow him to do that occasionally. Not every day, but as the Commissioner has stated a reasonable amount of time and on reasonable notice from your ex.

This additional time would be expected by the court even if there was no three hour right of first refusal. In fact, even if you were able to pick up your son every day from school, you would need to provide additional time beyond the set schedule to your ex.

Your original court order specifically states that "other periods of placement.... shall be reasonable, upon reasonable prior notice as the parties agree". What this means is that you are expected to agree to some additional time. Not every day, not every time you will be gone from your son for an hour or two---but occasional.

So the right of first refusal is as you understand it to be. However, your ex is entitled to some reasonable additional time with your son outside of the stated schedule. The extra time must be reasonable to you and your son, and with reason reasonable notice of the request to you as well. You certainly don’t have to agree to every request---just some of them. And even a few would probably be sufficient to show the court that you are not deliberately refusing to abide by the order of the court.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Kindly, remember to rate my service to you. That is how I am credited for assisting you.

I wish you and yours the best in 2015,

Doug

Customer: replied 2 years ago.
My ex works till 330 and I work till 430 ... so if I allow him to pick my son up each day till I'm out of work would that satisfy the court requirement for extra time? I do not have to agree to additional over nights ever do I ?
Expert:  LawTalk replied 2 years ago.

Good afternoon,

You asked: My ex works till 330 and I work till 430 ... so if I allow him to pick my son up each day till I'm out of work would that satisfy the court requirement for extra time? I do not have to agree to additional over nights ever do I ?

Allowing him the extra hour each day would more than satisfy the courts.

And there is absolutely no suggestion that extra time would translate into overnight stays. That is clearly not contemplated in your original order, or in the clarifying letter from the Commissioner. All you need to do is allow him some extra time. Additional nights would not be reasonable and it would run contrary to your schedule in place which specifically sets out what nights your son is with you.

Kindly, remember to rate my service to you. That is how I am credited for assisting you.

I wish you the best,

Doug