How would you interpret Right of First Refusal in this circumstance
March 12, 2015 2:37 PM   Subscribe

Between two parents sharing 50/50 custody, their MSA states: "If either party is unable to care for the minor child during their designated time, they shall each give the other the first right of refusal in caring for the minor child." Given that language, if the custodial parent sends someone else to pick up the child afterschool just to bring the child back to same parent, can the non-custodial parent invoke right of first refusal and insist that s/he be the one to do pick up and drop off of the child? I understand that ROFR exists to maximize the time a child can spend with a non-custodial parent and help maintain consistent contact of the child with the both parents. Just wondering if it applies to such a short period of time (5 minutes to/from school).
posted by phreckles to Human Relations (15 answers total) 2 users marked this as a favorite
I suppose it could technically apply if one parent was trying to nail the other parent to the wall, but I think it's a pretty ungenerous reading of the agreement to apply it in a case where the time involved is 5 minutes and the child will be with the custodial parent for the rest of the time.
posted by quince at 2:43 PM on March 12, 2015 [6 favorites]

IANAL but I do look at MSAs all day long, where this is often paired with questions about who will be allowed to babysit the child. I think the operative phrase here is "caring for the minor child," not necessarily picking them up from school and dropping them off to the CP, but like quince said, I imagine you could split hairs about this all day long if both parties felt like it. My guess is that it's going to matter how the particular parties interpret this.
posted by fiercecupcake at 2:58 PM on March 12, 2015

Which is, of course, to say, as AskMe often does, you'd need to pursue therapy ask a lawyer about this.
posted by fiercecupcake at 2:59 PM on March 12, 2015 [13 favorites]

If the other person wants to nail you to the wall on it, they can, but they'd have to be an ass to do so.
posted by corb at 4:05 PM on March 12, 2015

If you are asking, "This is in my MSA. Am I within my rights to insist on picking up my child in this scenario?" the answer is "why bother?" You will have much more important issues to deal with over the lifetime of co-parenting - save your time, energy and money for more important ones.

If you are asking, "My current partner, sibling or other person I care about is insisting that they have the right to do this pick up - should I talk them out of it" then I think you can already see the consensus on AskMF is that they shouldn't do it.

If you are asking "My ex (or my loved one's ex) is insisting on this, can they get away with it?" the answer is that if they have enough money to pay, they can insist on dragging you into court over anything. You would need to talk to your own lawyer about how that would play it if they tried it. However, depending on how you currently do hand-offs, you might consider agreeing to call the other parent first if you need someone to bring the child home - making it clear that all you are asking for the five minute drive - do they want to drop everything and drive the child to your house? I know that would be horrible option in some divorces but if the other person is more interested in standing on their rights than actually doing the driving it might make the problem go away.
posted by metahawk at 4:25 PM on March 12, 2015 [5 favorites]

My separation agreement has two things in it to prevent this issue: one, it needs to be reasonably foreseeable that alternate care will be needed, and two, that if unforeseeable situations arise then the other parent must be notified within a reasonable time and allowed to care for the child, unless the care required is reasonably expected to be less than an hour.

This covers "I need to run to the store, watch him for 15 minutes" or "my mom was in a car accident, I need to go now and I can't find [other parent]."

What it doesn't cover is a foreseeable need for care, no matter how short. I liked the weird times when I got to spend 20 minutes with my dad before school or whatever. It feels familial and comforting to have both parents as part of everyday life. Consider whether that's possible here.
posted by internet fraud detective squad, station number 9 at 4:32 PM on March 12, 2015 [6 favorites]

I read this differently than everyone else. IANAL, but someone who had a spouse go through a bunch of custody issues, which had me reviewing these type documents and spending way too much time with expensive lawyers. The key word here is "care for". I don't interpret that, nor do I think I a court would interpret that, as being with the child every possible minute they aren't at school. If we had custody of the children and decided to go out to dinner and hired a babysitter to watch the children, is the child with me, no? Am I still providing care for the child yes. Likewise, if I had the child's grandmother who is a sane and sober driver pick them up from school in my stead, I believe I am still in caring for the children. I more view this language to handle situations like, I am having surgery and going to be in the hospital for a week. With this language, even though the surgery might coincide with my designated custody time I cannot say, "well it's my time so I chose the child to stay with my mother, or my best friend." In my experience, the court will typically rule towards common sense. Being out of commission for a day plus, right of first refusal. Having someone else pick up a child from school, or hiring a babysitter, those are part of the normal course of caring for a child.
posted by ill3 at 4:38 PM on March 12, 2015

Ill3, the right of first refusal concept is specifically designed to cover cases such as hiring a babysitter. Therefore yours is a strange interpretation and I would not advise anyone to argue it to a judge.
posted by bq at 7:57 PM on March 12, 2015 [8 favorites]

I raised my grown boy from ~2yo - split from the mom with shared custody. your lawyer might be able to make this 'not an ok thing'. the next n years, there will be plenty of significant and real conflict to get through. i say, if you can let it go, let it go. maybe set a threshold of an hour or something to account for either of you having to run a complicated errand and stashing the kid with a neighbor. seriously, pragmatics are going to rule the day with these little issues. inal/inyl.
posted by j_curiouser at 8:18 PM on March 12, 2015 [1 favorite]

I think it depends on the kid's age and constitution. It could be challenging for Junior to see the other parent for just a brief time outside of the regular schedule.
posted by lakersfan1222 at 9:02 PM on March 12, 2015

A couple things... all prefaced with the usual 'please seek a consultation with a local family law attorney to help you figure out how to proceed.'

As an initial matter, a parent seeking the ROFR doesn't have to have legal representation to file a contempt action - a consultation with a lawyer could help with preparing the paperwork, but people go to family court without lawyers all the time. Whether the party seeking the ROFR can afford an attorney doesn't really change the risk of a possible court case.

It does seem possible that the other parent is entitled to be offered the option of transporting the child from school, especially if the after-school transportation by someone else is a regular thing, because it's not just 5 minutes, it's 5 minutes on a regular basis, which can add up to a more significant amount of time. Either way, the time right after school is an opportunity to meet with teachers, chat with the kid about their day, see a school project that the child created, and these are valuable moments.

Also, what is the concern about sending a quick email to the other parent and asking them if they can transport the child? It's a rhetorical question, because it doesn't sound like asking the other parent is being considered, which makes me wonder about what else is going on in the background of this situation.

Regardless, it sounds like you would benefit from specific advice from an attorney as to how this type of provision is interpreted in your state. There may be a quick answer to your question, but there may also be a need to address a larger issue to help protect the child from exposure to conflict between the parents. Your local or state bar association may have a low-cost referral service that includes a brief consultation.
posted by Little Dawn at 10:45 PM on March 12, 2015 [4 favorites]

IANYL and this is not legal advice. It is impossible to answer this question appropriately without knowing which country and state's laws apply here. Not seeing that kind of info on your profile page either -- care to update?

On these limited facts you've provided, Little Dawn has your best answer: "it sounds like you would benefit from specific advice from an attorney as to how this type of provision is interpreted in your state."
posted by hush at 5:35 AM on March 13, 2015 [1 favorite]

No one here can/will give you legal advice. But as a moral question, a parent with a right of first refusal should get first refusal for the regular transport of kids to/from school before it is outsourced to a third party. It's pretty clearly "care" and can add up to substantial time over the course of the school year. There are issues of reliability and so forth that would need to be addressed, and one-off or random times introduce some impracticality and opportunities for both sides to act in bad faith, but IAW the MSA one should start from the principle that the parents have first rights to care for their children.
posted by the christopher hundreds at 8:27 AM on March 13, 2015

Agree with above. If the parent is "farming out" the school drop-off and or pick up to a partner, family member, or friend, then the other parent should be able to have a say as to who drives the kid to and from school. If the other parent has a strong negative opinion of the person designated to drive, strong enough to step up and say "No, I'll do it instead, I want to do it and I will go out of my way to do so because I don't feel comfortable having X pick up the kid," then that should be respected.
posted by raisingsand at 8:34 AM on March 13, 2015 [2 favorites]

Yeah on further research it's down to state. Grandparent or immediate family does not trigger ROFR in Texas, less than 4 hours does not trigger in Indiana, etc...
posted by ill3 at 6:21 PM on March 16, 2015

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