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DIVORCE 23: Right-of-first-refusal parenting-time condition in the divorce judgment.

In July 2015, a consent judgment of divorce was entered granting defendant and plaintiff joint legal custody and joint physical care, custody, and control of their minor child, who at the time was about to start kindergarten.

The judgment set forth a two-week parenting time schedule. Holidays were alternated, and each year they were rotated. Christmas break and spring break were to be divided equally, and each parent was to receive two non-consecutive and uninterrupted weeks in the summer.

Both parties are nurses who work 8 to 12-hour shifts, and the divorce judgment included a right-of-first-refusal provision, which stated: Each party shall have the right of first refusal if they are going to be away from the minor child overnight OR for a twelve (12) hour work shift. If they will be away because of either of these, that parent must notify the other parent to offer them the first right of refusal for overnight parenting time. This is not available during holiday and school break parenting time.

Defendant filed a motion in September 2017 to modify parenting time so that he had parenting time, including overnights, every Tuesday, Thursday, and Saturday. He alleged that, approximately one year after entry of the divorce judgment, the child began having overnight visits with him on plaintiff’s Tuesday nights due to plaintiff’s work schedule, which resulted in his having overnight parenting time every Tuesday.

The fact that plaintiff offered defendant the RFR for numerous Tuesday overnights over the course of approximately nine months does not support defendant’s position that a change of circumstances or proper cause has arisen. The referee concluded that it would be improper to hold plaintiff’s compliance with a valid provision in the judgment of the divorce against her in an action to modify parenting time; to hold otherwise would penalize plaintiff, and other parents, for following the provisions of a judgment of divorce, and it would generally discourage parents from permitting any additional parenting time to the other parent outside the court’s orders.

The referee determined that such a substantial increase in defendant’s overnights and corresponding decrease in plaintiff’s overnights would change the established custodial environment.

The referee opined that defendant had not shown proper cause or a change in circumstances.

While it is possible to seek a modification at any time, receiving the modification is much more difficult. If you can prove a substantial change in circumstances, a child custody, spousal support (only if the original divorce degree states that it can be modified) or child support modification is possible.

With more than 20 years of experience, our firm is well-suited to help plan a strategy that gives you the best chances of success.

Contact Aldrich Legal Services


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