This is come up 3 separate times in 3 days. So I thought Id do a little post. OK, a long post, but if this is a thing in your case read through it and you will get the optics that set you ahead of the game.
First right of refusal basically means if your ex can't watch the kids, then you get to before they "pawn" them off onto someone else. Often the 3 hour mark is a threshold (if the child has to be in someone else's care for more than 3 hours, then you would get opportunity before anyone else).
On its face - this sounds reasonable. But...as in all things family law, it depends.
The perspective is 3 fold, and none may be obvious. It will feel to you as a benefit to you and so therefore you want this first right of refusal. But remember, the judge is not allowed to consider what's best for the parents but rather only for the child. Ok.... "so that's still ok, it's better for the child to be with me than anyone else right?" you might say. Well yes... sorta... but it depends remember?
POINT ONE If you remember, one of the forms you fill out when starting or replying is one called 35.1 Affidavit decision making, parental time, contact. In there, the court specifically wants to know what your support network is. They want to see that the child, when in your care, doesn't have to specifically rely on you and only you. So if you are claiming that you should have first right of refusal and that your ex should utilize no one at all, that runs afoul of what this document proposes. If you give the optics that you want the other side to do everything by themselves or nothing at all, that's not reasonable and not what's in the best interests of the child. The other side should be encouraged to use family members etc. and be made to feel they have to do it all alone. It takes a village to raise a child right?
POINT TWO However, if we are talking babysitters - then that's different. It would be better for the child to be with you or other family members of which they share a bond with rather than a babysitter. In that instance, yes, it would be appropriate to foster the bond that presumably will only come from family members. And family members could include the ex's new spouse! You don't want the child to feel like they are living in a home when over there with "a stranger". It's in the childs best interests to have a bond with a significant other on the other side. That's their family too. That's a tough pill to swallow - but that person may be called on to render emergency aid and its better if the child is good and at ease with them.
POINT THREE Judges are people too. And a lot of judges are going to be grandparents. So if in your materials you try to exclude the other's family members, including their parents, you are essentially signalling that you don't want the grandparents to have any significant time with the grandchild, and that their roll is unimportant. What do you think that signals to a judge on a personal level. I guarantee that if they have grandchildren, not only would that be personally offensive, they are not going to want to enter an order that could in some future come back to haunt them should their kids go through divorce right?! Plus .. what kid doesn’t want to spend a day with the grandparents and get spoiled. I bet most of us did. So you objecting to that time is clearly not taken into account the child … it’s for you… and that’s not the message you want to convey.
THE OPTIC The message you want to convey is that you encourage the child to have time and establish a bond with extended family, be it with yours or theirs, but you want to specify that you feel your ex is part of your child support network (yes - this is a novel idea but it will promote your willingness to coparent which is critical in these battled), and that you hope your ex would in time be able to view you as one of their support members. That you don't want to raise the child alone, that you want to rely on your family, your ex, your ex's family all to come together to give the child the supportive bonds they need.
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