Invoking ROFR When The Clause Isn’t In The Decree

Question:

My divorce question is about the right of first refusal clause.

During my parenting time that includes overnight visitation, I sometimes have to work so my fiance or my parents stay with my children.

My ex-wife now wants to take our children on those nights when I work by stating she is using her first right of refusal. However, in our divorce decree, there is no such claim about a right of first refusal clause.

She has never tried to exercise a right of first refusal before, and my work hours have not changed since our divorce so she knew I would be gone some of those nights I have overnight visitation.

Will my ex-wife be able to exercise the right of first refusal even though the decree does not state anything about that right?

Answer:

I am only licensed to practice law in Utah, thus I can only provide you with some general divorce help for men regarding the divorce laws you present in your question.

Where I practice, the Utah Code states the following:  “(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.”

While the law encourages you to cooperate, there is no automatic right of first refusal unless stated in the decree of divorce.  If she wants that right, she needs to seek court relief.

The court will balance the need to allow the parent to care for the children instead of a non-parent and the need to maintain stability (consistency) of the custodial arrangement.

I do find that the court is more willing to maintain the status quo, especially if your ex-wife has never exercised her right of first refusal. While not certain, it is likely that the court will not disrupt your current custodial patterns.

However, that does not mean she does not have the right to make her case; rather, she does and you need to defend against it.

Again, I am unable to provide you with legal advice on divorce and this should not be construed as an attorney-client relationship. Consult with a local mens divorce attorney for specific divorce advice about visitation and parenting time clauses in your jurisdiction.

To schedule an appointment with a Cordell & Cordell mens divorce lawyer, including David W. Read, an Associate Attorney in the Utah offices of Cordell & Cordell, please contact Cordell & Cordell.