Hello Mamas,
My husband and I are in the process of getting a divorce and I want to know if any of you have ever heard of 1st right of possession. A fellow co-worker of mine suggested it to me. I don't have a problem with my soon to be X husband having our kids at any time, my concern is that he works almost every Saturday and I do not want him leaving our kids with a potential girlfriend or his family. The family I am speaking of has had issues with CPS and the cleanliness of their house. Not the environment I want our young kids in. My co-worker said that with 1st right of possession, her x has to give her first opportunity to care for their kids if at anytime he is not going to be able to. Has anyone else heard of this? I am also wondering how willing a judge would be to agree to this. As I said earlier, I have no problems with my husband seeing them anytime he wants, but I do not want them being left with people they don't know when they could be with me instead.
I have never heard of that but it sounds very reasonable, espcecially with their history. Since you are being reasonable about the ex seeing the kids anytime I do not see why a judge would not at least listen to this proposal. You have the kids best interest in mind and are not at all hindering his visitation by requesting that.
"First right of possession" will only help you in the event the father is to be away from your children for more than 24 hours. During his visitation, he has the right to work and leave your children with "responsible, safe" childcare, family or friends. If you truely believe that the kids are "unsafe" at his family's home, then you can present that issue to the judge and he may consider other restrictions. Dad might not always get along with mom, but he must want what is best for his kids;rather than have a nasty, costly argument in court, be sure to talk things through with your ex-spouse beforehand.
It is pretty common for the court to require him to ask you if there is any time he can't be with the kids.
As for the family with CPS history, if they in fact have a CPS history,a judge will DEFINITELY not allow your kids to be unsupervised with them-but you have to bring it up. Before going to court, you can tell your ex that if he slips up on that, he would not be allowed to have them unsupervised either.
I had the same issue when my husband and I seperated back in the summer (we have since reconciled). I was told by my attorney that I could not dictate who my husband designated fit to keep our son if he was not available during his weekend. I argued the same thing as you. Why should he be with someone else when he can be home with me if my husband has to work. Honestly, I have NO problems whatsoever with his family and would not have worried if our son would have been with them but I just thought it was ridiculous since he could be home with me. I really don't think you can but it sure doesn't hurt to check with your attorney and try it out and see what happens. If there is anyway you can get proof of the issues with his family, their history with CPS, etc... I would certainly do so. Make sure your attorney stressed to the judge that you have no problem at all with your ex having visitation but that the enviroment that his family provides is not safe or sanitary. Good luck with all of this. I know it's a difficult time.
I had this in my decree as well. It can also be used against you if you ever want a night out whether with friends or down the road a date. He will have the same 1st right of refusal for you as well. More than once I would call my x, never hear back, I would make other child care arrangements and he would show up and take our daughter. I found this very unsettling.
Best of luck to you and your children going through this difficult time.
It's actually called the "Right of First Refusal". It means that if 1 parent is unable to care for the child/children they are Ordered to offer the other parent the time first before making other child care arrangements. Generally the parent who is offered the time has to confirm that they will be exercising the offered visitation within 1 hour. The Right of First Refusal does not cover other family members so if you are worried about that you will have to have a special provision added stating that your husband can not leave the kids with anyone. Understand though that you too will be Ordered to do the same thing. A Judge will almost always Grant the request for Right of First Refusal but having the other family members included in that might be a stretch unless you can prove that they are unsafe. Good Luck. Also I am not sure if you are aware of this but I was just noticing your children's ages and your husband will not be Granted overnight possession until they are a little older.
Hi D.,
First of all, best of luck to you. I know this is hard...I am going through it myself. You can put a right of 1st refusal in your decree. Typically, it is applied when your x can't be with the kids for a minimum of 24 hours. In my case, I changed it to 4 hours. We are both living with our parents while the divorce is pending and I do not agree with his mother's parenting approach, even though my x is a great father. My intent was to prevent him from having his mother raise our children. He has agreed to the 4 hour change, but keep in mind, it goes both ways. Good luck and stay strong! There are good days and there are bad days, but as time goes on, there will be more good than bad.
L.
D.:
I am a family lawyer in the DFW area, and your co-worker is correct in her description of the "right of 1st refusal" your referring to in regard to your children. So long as both you and your husband agree to this, the Judge will not have a problem signing off on it.
Please feel free to contact me at: ____@____.com if you have any further questions!
A. McMurry
