Visitation Question


#1

I share custody with my ex-wife of our 8 yo daughter. I have her every other weekend and one night/week per our custody agreement. I have now remarried. My question is this… If I am out of town due to my job (requires frequent traveling during the summer/fall months), can I still get my daughter for our scheduled visitation and have her stay with my new wife (who she adores)? I only ask because I am not sure my ex will agree to this. I just want to know if I have the right to get my child even if I am not there and have her spend the time with my new wife in our home.


#2

It depends on what the agreement says. If there are no restrictions, your time is your time.


#3

So just to clarify, the separation agreement/divorce decree states that I have visitation rights of every other weekend and one night a week (minimum). My ex and I have joint custody and she is the primary custodian. My wife can pick my daughter up and keep her for the weekend when I’m away?


#4

You need to look at your agreement for a “Right of First Refusal” clause.

Simply put it means that if either parent is going to be away for X number of hours, then the other parent gets the first chance to watch them before a babysitter/family member/neighbor is called.


#5

There’s not a “Right of First Refusal” clause written in. If I am understanding you correctly, even though I will have to be out of town on a weekend I am scheduled to have my daughter, I can allow my wife to pick my daughter up and keep her for the weekend if I so choose. Is this correct?


#6

Correct.

Though – it’s still going to make your ex, really really mad.

If you search these forums for Right of First Refusal you will find a good deal on the topic.


#7

Yes, I agree, it’s going to make her mad. But maybe you don’t care. I think I would see if the ex-wife would be willing to substitute some of the time you are out of town for other times that you are in town. That might help keep your relationship with the ex on a more even keel which (I hope) you will see is beneficial for your child. Divorce, Custody and Visitation are so tough on children. Even though your daughter really likes your new wife, that doesn’t mean she would rather spend time with her (new wife) than her Mother. Please, do not ask your daughter that question. Kids love both of their parents and don’t want to hurt anyone. Is it in the best interest of your daughter?
That’s what it’s all about in the long run. Just because the law says that it’s allowable, doesn’t mean it’s a smart thing to do.

Obviously, I am not a lawyer. Just a grandmother who thinks it’s not always just about the law.


#8

Smart grandmother. Without intending, you may make your daughter resentful. I didn’t know it until my step-daughter was grown, but she really resented her dad leaving her with me. It wasn’t that she didn’t like me, she just wanted to spend time with her dad. The suggestion that maybe you swap time for a weekend you will be there is very good advice.


#9

Yes, unless there is a right of first refusal or some other clause that makes the custody provisions different, your custodial time is your time, to do with as you choose. In my opinion, it’s the same as the daughter having a sleepover with a friend while on your weekend.

I can’t say this enough: the facts of every case are different. Perhaps mom refuses to swap time. Perhaps daughter begs to come in dad’s absence. Perhaps there are step-siblings or half-siblings in the house that the daughter wouldn’t get to see otherwise. Perhaps dad simply wants to enforce his time because he feels it’s important for his daughter to spend time with his wife even if he can’t be there. Whatever the facts are, the point is that the dad has the right to enforce his time, even if he is not there.

If this happens often, mom might look to modify the custody arrangement. In that case, the court is going to look at the best interest of the child, and dad may need to be able to explain his decision to enforce.