Q: Right of first refusal
My daughter is with her dad 7/1-7/31. We all live in Texas. He left my daughter with his wife and came back to Texas to go to work. Was he supposed to exercise right of first refusal?
Right of First Refusal
The parties have agreed and the Court therefore ORDERS if a parent is
going to be away overnight during that parent’s period of possession, then the
parent who will be absent shall notice the other parent of that parent’s intended
absence 8 hours in advance, or as soon as known he or she will be away
overnight, allowing the other parent the right of first refusal to care for the child,
during that parent’s absence. The parent exercising the right of first refusal shall pick up the child at the child’s school, if school is in
session, or the other parent’s residence if school is not in session. The absent
parent shall pick-up the child from the child’s school, if school is in session, or at non-absent parent’s residence upon the absent parent’s return.
A:
Thank you very much for including the language from your Order or Decree!!! Very few people think to include it and without it we cannot answer these kinds of questions.
I'm a bit confused, though, about the facts- you said "we all live in Texas" but then you said dad left his child and "came back to Texas to work". I gather you mean that you and the child live in Texas but the dad does not?
In any case, based on the few facts you have stated, it appears he is in violation of the Decree. Your remedy is that you can file a Motion for Enforcement against him, asking the Court to punish him for violating the Decree and awarding you make up time and attorney's fees. Be aware, though, that some courts sometimes do not uphold these clauses because they are thought to be not specific enough to sustain a contempt finding.
If feasible, I recommend you try to resolve this with the father before resorting to court action. You might work it out and if you don't, you have laid the groundwork for a better chance at recovering your attorney's fees.
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