Right of first refusal. Pitfalls?

[Moselle]

I have a soon to be ex who is on the dangerous scale of BPD and I want to secure first rights of refusal for looking after the children.

Does anybody have any advice for how to write this into the divorce settlement papers in the most watertight way possible?

[scraps66]

I have it in my Order.  Ex never follows it.  So don't get your hopes up that automatically she'll abide.  Not in a BPs nature and worse if it's something you want.  I have anything over four hours away from the children in my order.  I would also add over and above the ROFR, that, if there is some activity that the child needs to get to and the other parent can't provide transportation, the other parent gets the first opportunity to take the child.  My ex has taken to having her boyfriend take my kids to games and practices. I think those should be my opportunities for satisfaction.

[Moselle]

Thanks Scraps.

I want to write some consequences into the papers. Eg if the fails to notify me, She forfeits a weekend.

Does she have any consequences built to your agreement if she fails to observe it?

[momtara]

Yes, put consequences in there.

You could specify that she give you all the contact info for all babysitters she intends to use and all people she may leave the kids with, and allow you to contact them. You could specify what ROFR applies to - if she gets a sitter for a half hour, does she need to call you? What if she has her parents sit?

I regret having the right of first refusal because I have almost all the custody, and now if I need a sitter I have to tell my ex. So it's a good thing only if you're the one wanting more time, not as much if you have a lot of it already.

[Moselle]

I have a letter from our marriage counsellor where she describes her parents in a very poor light. I want restrictions on her parents, and for me to be informed every time her parents sit.

What consequences can I have if she breaks  the agreement for example by not informing me if she gives them to her a sitter for a day?

[Waddams]

I regret having the right of first refusal because I have almost all the custody, and now if I need a sitter I have to tell my ex. So it's a good thing only if you're the one wanting more time, not as much if you have a lot of it already.

It's definitely a double edged sword.  I understand why you want it, but I'd also recommend to do some Google-Fu on the types of problems that can arise from it.  PDx's can and will use it as a weapon against you.  Judges also don't like hearing contempt cases about it and see such cases as more the ex's just continuing to look for ways to retaliate against each other most of the time.  Some, instead of ruling for contempt for violating it, will void that portion of the order instead as a way of trying to tell warring ex's to get over it and quit fighting each other over every little thing.

In the end, it's not in mine.  I decided that for me, the less court ordered stuff the better.  That way I had more control over my life and the court had less.  It was a strategic overall decision for me, and it might not be best for everyone.

[livednlearned]

In general, lawyers are going to want the language to apply to both parties, unless you can make a good case that things only apply to one party.

My ex is a fall-down black-out drunk, so I wanted language that said he could not drink before or during visitation. My lawyer said I could not ask for special conditions, and that the language had to apply to both parties.

Which really ticked me off! I made a strong case that alcohol was not my issue, it was his issue, and there was enough documentation of this that I was able to get the order to apply this condition to N/BPDx.

You may start off with: Kids can never be left alone with grandparents.

Knowing that you will agree to: If kids are with grandparents, ex must be present.

Or something like that. Unless you can show that there is gross neglect involved with the grandparents (court won't like any restrictions to extended family... .unless substantiated).

[Thunderstruck]

Yes remember that anything you put in there will also apply to you. Which means you (being the rational person) will follow the order and the other parent (being completely irrational) probably will not. And it is difficult to get enforced.

I think it'll depend on the judge too. We have a new judge on our case. We don't have a ROFR in our temp CO but wanted to watch SD10 after school on uBPDbm's time instead of her being home alone with no phone. Judge basically said to my DH "You can do what you want on your time, she can do what she wants on her time" and that was it.

[ForeverDad]

In general, lawyers are going to want the language to apply to both parties, unless you can make a good case that things only apply to one party... .

You may start off with: Kids can never be left alone with grandparents.

Knowing that you will agree to: If kids are with grandparents, ex must be present.

Or something like that. Unless you can show that there is gross neglect involved with the grandparents (court won't like any restrictions to extended family... .unless substantiated).

That was my case, the ROFR applied to both of us but it was virtually impossible to make ex inform me of times she wouldn't be with son unless she wanted to tell me.

Also, ex didn't want my parents to care for my son, triggered by my family.  By the time it was put into the final older he was in school and they were mid-to late 80s.  Both have since died.  Due to their advanced age, I didn't see that as an issue but I did make sure the ROFR excluded ALL grandparents, not just my side of the family.

Also, despite our shift then to equal time Shared Parenting, I could tell that ex saw herself as still calling all the shots and I knew she'd try to encroach on my parenting time while I was working.  So I had a clause added that our daycare facilities were 'equivalent' to school and ROFR didn't apply there.  Yes, she could still visit our son there on my time but she couldn't take over.  My time remained my time, just as it was mine when he was at school during my time.  It turned out that it was just about the best clause I inserted!

A few years later, as son was older and I was getting more time and responsibility, I had it dropped with GAL's agreement when I became Legal Guardian in a new order.

Yes remember that anything you put in there will also apply to you. Which means you (being the rational person) will follow the order and the other parent (being completely irrational) probably will not. And it is difficult to get enforced.

Judge basically said to my DH "You can do what you want on your time, she can do what she wants on her time" and that was it.

This is crucial... .if your issue with ex is that ex will intrude on your parenting time, you may want longer ROFR time triggers.  (As I noted above, I had daycare declared equivalent to school so ex could not take over while I worked.)  But if your issue with ex is that ex will not let you step in when ex is absentee, you may want shorter ROFR time triggers.  (Mine was 4 hours which was okay at first but too short as my son got older.)