Gahhhh the hypocrisy

[Penny Lane]

So, some of you may remember (or relate to) DH's and my struggles with right of first refusal time with his probably uPD ex. Right of first refusal (you all might already know this but it was a new concept to me) is a provision that says that if you are unavailable you have to ask the other parent if they want to have the kids before you get a babysitter.

My stepkids' BM violates this constantly, like at least once a week. She only proactively offers DH right of first refusal when she goes out of town, though she's away from the kids often. When he tries to insist that she follow the court order at other times, she usually refuses or lies or comes up with some "interpretation" as to why it shouldn't apply to that specific situation (but spoiler, it's just about every situation and her "interpretations" are more like "loopholes"). This is especially an issue in the summer and it's been a huge headache for him every year. The kids usually end up with him for part of the time they should be, but it's inconsistent and always scheduled at the last minute. On the rare occasion when DH is unavailable, he does offer her the right of first refusal even though she doesn't do the same for him. This ends up being a handful of times each year.

Now it seems that her latest interpretation of why she doesn't have to offer right of first refusal is that she says she is allowed to make plans for the kids when she's unavailable. Which on its face isn't ridiculous - I mean what if you arrange a playdate and then realize you have to go in to work for part of that time? Do you have to cancel the playdate? I'd say no. But she's taken this to a totally ridiculous extreme and "scheduled" the kids to be with babysitters, her current boyfriend, or her parents (the kids will go to her parents' house and watch tv for 10 hours a day while she's at work) all summer. So, she claims, DH can't exercise any right of first refusal time all summer. ALL SUMMER.

So to summarize, her position is that the provision of the parenting plan that says you're supposed to offer time to the other parent rather than hiring a sitter doesn't apply because she has "scheduled the kids for an activity" and that activity is ... having a sitter. You can see why I think she's trying to find loopholes.

Well, now the situation has come up, but reversed. Basically the kids and I made plans for a special outing, nonrefundable one-time tickets. And something came up so it turns out DH is unavailable for part of that time. This is the exact same situation that she has been talking about, except that it truly did occur in good faith on our part.

You all might be shocked to hear that BM does not think that the same rules apply when it goes the other way. She says DH cannot make plans for the kids, even in this rare circumstance. No explanation for how she can reconcile that with her "plans" she made for the kids all summer.

DH has asked her to commit to one set of rules that apply equally to both of them. We'll see what happens. On one hand I'm glad that this situation fell into our lap that can force a discussion of right of first refusal (which has been an ongoing frustration for DH in particular). I'm hoping DH can make it into productive discussion and that it'll lead to the kids being able to stay with him instead of sitters this summer. On the other hand I am sooooo frustrated at this whole thing. And I'm apprehensive at the possibility that she'll again try to chip away at DH's parenting time and that she might try to force a confrontation over this issue. I also don't want to continue going on the same road they're currently on, where BM doesn't follow the right of first refusal provision but DH does.

I'd been working hard on radical acceptance but this one threw me for a loop. I think it's partially the uncertainty of not knowing whether we'll be able to do the thing. I should probably take my own advice and do something productive and try to stop worrying about it. But easier said than done!

[Poison Ivy]

Oh, Penny Lane, this is so frustrating!  It is very hard for rule-following, ethical people to cope when required to deal with rule-breaking unethical people.  You have my sympathy.

[Whiteheron]

I am so sorry Pennylane.

The rules are only for us, not for them. I hope your DH is able to get her to follow the agreement. My stbx is like this a lot - we don't have to deal with right of first refusal yet, but there have always been two sets of rules, one for him and one for the rest of us. Oh how I wish upon wishes that they would just get over themselves and do what's best for the kids. Setting up "playdates" with a babysitter does not qualify. Not in the least.

[Associate of Daniel]

I don't think we have this situation in Australia.  But I've come across a different opinion regarding it from "The Proper Person" videos on youtube.

He says to avoid it in high conflict cases as it is an invitation to more contact with the pds and hence more drama.

I found it hard at first to hand ds over to my uNPD then husband to his uNPD girlfriend when he wasn't there.  I still find it hard but radical acceptance is making it easier.

Sorry. Gotta go. But I feel for you all.

AOD

[HotCocoa]

Penny - our right to first refusal was if one of us couldn't take the kids overnight, then they would have to ask the other first.
My ex would just forgo custody time if he was out of town for the night, so there was really no back and forth. 
I am a homebody so I never had to ask him to take the kids. 
So, the right of first refusal instead of getting a baby-sitter is a hard one.  That means that if BM wants to go out for the evening, she is supposed to ask her ex husband.  If you guys want to go out, you have to ask his ex wife.
To me, this is way too much communication.
BM gets off on having this much communication.  How much power can she wield over ex.  Unless this is taken to court for breaking this part of the agreement, there is really no way to win.  Looks like the options are:
1.  Go to court for her violation of the custody order or,
2. She has the kids on her time and you have the kids on your time and that's how it goes. 
Frankly, the second one sounds more appealing to me because I just wouldn't be able to sustain this much communication with a PD.  It is way too toxic. 
Look out for your marriage and making your home wonderful when kids do come over.  Going down the road of constantly talking about PD, and the toxicity is bad news. 
I also think BM stating you and your husband can never make plans for the children falls into the category of none of her business.  There should be provisions in the order that your ex gets so much vacation time to take with the children.  He can let her know where they will be, but that's really all he should be obligated to say.  No more.

[Stepping lightly]

This is exactly why we never bothered asking for this in our CO.  It would be in there simply for DH to follow, and BM to do as she pleases. But my blood boils when I find out BM left the country and left the kids with her live-in BF. 

[athene1399]

We had a similar thing happen (kind of). BPDBm would make appointments for SD on SO's time to have her and use that as an excuse  a to why he couldn't have SD on his time. So frustrating. It was difficult to put an end to and she raged when we told her we could take SD to the appointment since it was made on our time. At first BM wanted to join us, so we could all go together, but SD suggested she stay home. So once we put a stop to that, BM would invite SD's older brothers over on our time and we feel too bad to make her come with us. So BM just found another way to win. She always finds another excuse or another way to bend the rules (that we cannot bend ourselves).

I agree with the others. You can take her to court for not following or just not follow that section. Is it possible to get her to agree to get rid of that part then just have each parent sign off on the change? I think the First Refusal is a great idea for non-high conflict couples, but in the PD world it is just one more thing to go wrong. If you have the money to take her back to court that would be one thing. But even if you have the money  it is still stressful.

I hope she will let you guys go do this thing. It will be sad if the kids miss out due to BM's shenanigans. And don't feel bad that this put a wrench in your practice of radical acceptance. Just see it as a new challenge for you to work on practicing your skills. In all seriousness though, you should be proud that you can practice radical acceptance at all! 

[Penny Lane]

Thanks for the commiseration everyone! Yes Poison Ivy I'm a big rule follower, probably to a fault. And that makes this harder for sure.

Many of you made the point that this is a bad provision, and I agree. If it were up to me I would get rid of it in a second. Or at least make it so that it only applies to overnights. But it's part of the court order and as much as I wish I could change the order unilaterally, we just have to live with it. The genesis is that when they were divorcing (before I met him) DH really wanted it in the parenting plan because he knew she'd be away from the kids so much. And while that's true I guess he didn't contemplate her total disregard for following a court order. At least since I came on the scene it's mostly just caused problems.

Is it possible to get her to agree to get rid of that part then just have each parent sign off on the change?

Interestingly, for years BM told DH that she doesn't like the provision, that it's bad for the kids, etc. At one point her lawyer really aggressively tried to strongarm him into agreeing to get rid of it. He always said no (again, I don't agree with this but it was his decision not mine). Then, when they were in court, he gave in and offered it as part of settlement discussions. BM said no and acted like he was soooo ridiculous to even suggested it and said she thought the kids wouldn't actually be with him on his parenting time (even though they're currently not with her on hers).   

Looks like the options are:
1.  Go to court for her violation of the custody order or,
2. She has the kids on her time and you have the kids on your time and that's how it goes. 
Frankly, the second one sounds more appealing to me because I just wouldn't be able to sustain this much communication with a PD.  It is way too toxic. 

I agree that this is toxic but the problem is that there's no option 2. What's happening right now is option 3: She has the kids on her time and she also has the kids on his time. I could live with #2, and I think DH has come around too. But we're not OK with #3. We also wouldn't be OK with just not telling BM whenever DH is unavailable in order to try to force #2, even though that's what she does (there's the rule-follower coming out!).

So I think the options are more like:
1. Live with the current situation, where DH offers BM right of first refusal and she doesn't offer it to him. Knowing DH he won't be able to just let it go when she doesn't offer him time so it'll be constant conflict over the summer, though he would probably prevail some of the time.
2. Try to get her to agree to one set of rules that applies to everyone, and if she doesn't either go back to #1 or head to mediation and potentially court to clarify.
3. Wait until they're back in court anyway (it seems almost inevitable in 2-5 years given her increasingly erratic behavior in other areas) and try to address it then.

None of these seem like great options. Going to court just for this is a nonstarter for me. I'm still somewhat hopeful that they'll reach some kind of agreement now, though I'm not that hopeful that BM would actually follow it long-term.

I'm definitely sad about the possibility of missing this event with the kids but I'm even more frustrated with the hypocrisy and inconsistent reasoning. It's basically like she's conceded that her argument has no merit but she knows DH won't take her to court over this so she can do what she wants.

Whiteheron,

The rules are only for us, not for them.

Ain't that the truth! This is just the latest in a long, looooooong string of hypocrisies. The very worst was the time that DH stopped paying one of her bills (a holdover from the marriage that he was in no way obligated to pay for). In the course of switching the bill over she found out I was doing a specific thing for the kids (long story on the specifics, but think like, making dinner occasionally before I moved into the house - it's not something that would violate the parenting plan, any law, or common sense). She was really mad about him not paying the bill and she went NUCLEAR. Harassed him at work and showed up to our house, drunk, tried to push her way in, yelled at him, yelled at me, and wouldn't leave until the police made her. It was, no exaggeration, by far the worst day of my entire life and the kids still talk about "the time the police came." Then afterward her explanation was that it was so inappropriate that I was doing this thing for the kids that her behavior was justified. And she said it was especially inappropriate that she found out from the kids, not DH, and that's why she tried to push her way into the house because she wanted to make sure I wasn't "making dinner" at the moment.

Now ... her current boyfriend does the exact same thing for the kids. I will let you all guess whether DH found out from her or from the kids. (OK, I will tell you, it was the kids.)

[Magnolia34]

Oh gosh, RFR makes me crazy. My conundrum was always this... we also have the "overnight" provision with my DH's children. If he won't be home by the time they wake up in the morning their mom has the option to take them. BUT. What if the kids WANT to spend a night away from us? What if they want to go to their grandparents house? They won't be with us, they'll be with an alternate caregiver... but are they not allowed to do that? We've just decided to overlook that one and not ask and it hasn't been an issue so far. I'm a "Rule Follower" too but, for better or worse, I'm loosening up a little bit. I draw the line at flat out breaking the rules but we figure if she can bend them and have NO accountability with the court, so can we.

So, are you completely unable to have the children in your care by yourself? Per her version of the "rule" if your  husband runs to the store for some milk she should have the option to watch the children? Are you allowed to take DSD shopping alone if you wanted to? I don't see how any of these outings is different than you being able to take the kids to a previously planned event. Maybe it's an overnight thing and I missed that part, which I could kind of understand. But the frustrating part is that a reasonable person recognizes that and attempts to be flexible.

I don't have a good answer, just sympathy for your situation. I do also agree that you all are having to do a LOT of communicating which, in our case, ALWAYS makes things confusing and contentious.

Good luck!

[findjoy81]

For some reason, our judge specifically denied to put into our order the right of first refusal.  After reading this - I'm kind of glad about it.  I know my kids are with sitters sometimes instead of with me, and it sucks.  It nearly happened last weekend, because he was trying to use "giving me" the time he was going to be out of town as leverage to get something else he wanted. 

But, as a therapist friend of mine said, you can only take care of what's on your side of the fence.  I have had to do a lot of deep breathing and mental work to accept that I cannot control what he does on his time.  And that if he chooses to send our children with a stranger or another person they barely know, instead of their own (willing and available mother) when he's busy; then that's just the way it is.  It sucks.  Majorly.  BUT... I think it sucks less than your situation.  Instead of fighting over the court order, being frustrated at the courts impotence to make it happen, having to constantly ask him to take the kids for short stints when my current husband is available to watch them, and essentially banging my head into a wall over it (when - not if - he didn't comply with right of first refusal), I just focus on what I do have influence over, and leave the rest. 

[athene1399]

PL,

What if you do a combo of 1 and 3? Like you guys continue to follow it. Note every time she doesn't. Then bring it up when you go to court next. It sounds like you already feel that there will be a next time. And you can even show the court what she says why she doesn't follow it, and when you guys ask for an exception what happens. Sow you've been trying to work with her on it and she just won't be reasonable. She has her exceptions and won't let you guys get away with one.

Either way, it's incredibly irritating. The rules tie our hands, but they are able to find their own exceptions that only they are allowed to follow. I think we all understand that all too well. I'm sorry this has you possibly missing fun time with the kids.

[Penny Lane]

Thanks everyone!

Quick update: At the last second BM stood down, so the kids and I went to the thing. She and DH did NOT resolve the bigger picture question of whether the other parent is allowed to schedule "activities" during right of first refusal time. In fact she totally ignored DH's email about that point. I'm glad she resolved it in a relatively productive way (the worst case scenario, in my mind, was that she would just not respond to DH and then she would show up when I was with the kids and try to take them, and I'd have to call the police to have her breathalyzed because last time she did something like that she was drunk.) As always I wish I had spent less time stressing about it, but I guess I'm still on a journey toward inner calm about her bs. But I do wish she would address the bigger picture issue - it is so hard to plan anything when she won't even tell DH whether she's going to follow the parenting plan until the day of!

findjoy - I think the judge did you a favor even if it probably didn't feel like it at the time. To extend the fence metaphor, the grass is NOT greener on the right of first refusal side of the fence. So when you're getting frustrated that the kids are with sitters at your ex's house maybe remember ... they probably would be either way.

athene and acc - Yeah maybe we should get used to doing some combination of 1 and 3 as well as not being quite so diligent about offering her right of first refusal.

acc to answer your questions, it's not for literally any period of time but it's for even very short periods of time, like a few hours. The kids and I do stuff alone but usually DH is "available" - he's choosing for me to taking them on an outing rather than using me as childcare, if that makes sense.

The problem is that the provision is pretty vague - what does "unavailable" mean? BM has in the past "interpreted" it as, basically, she offers DH right of first refusal if she goes out of town, or if she doesn't have any other childcare options. She's said she's "available" even when she goes to work all day, even when she goes to an "adults only" party, even when she pays someone to babysit the kids, even once when she went to a gala. But I suppose you can torture the language and get there. Grey areas are where she thrives. This situation was actually great because it was exactly the same as times where she has said right of first refusal doesn't apply. So it really showed the ridiculousness/hypocrisy of her position.

At one point I wanted DH to try to get on the same page as her. Like they would list out all the situations where right of first refusal applies and agree in writing.

But now I think ... what if he just says "your position is that it doesn't apply under these scenarios and I'm not sure why it would apply to my time but not your time." It doesn't require any action from her, and it's something he can just decide to do without her weigh-in.

[Arkhangelsk]

Oh, Lady.  Your life and my life share so many *fun* similarities.

We have exactly the same thing.  The creative interpretations of the custody agreement are staggering.  The current fight is about the fact that the rule is that the parent who ends a period of custody is in charge of drop off.  Never could a sentence in a contract be less ambiguous.  But ---oh the many paragraphs he writes to explain why he does not have this obligation in any given exchange. 

Here is what we have set as our course of action.  We follow the rules in a reasonable way.  If the ex does something ridiculous, we allow it, but document it.  So, if he is supposed to drop off the kids and says he will not do it, we go get them from the place he demands.  And we keep a record.  Then end game is a collection of these incursions in order to make a filing for contempt.  You can do this without re-litigating the order.  In my jurisdiction, contempt requires that we show that he willingly refused to follow the order.  My lawyer says that these do not get granted often.  This is why we are making the list of violations to hit him all at once.

The nice thing about this is it helps me accept the madness.  I know the response is to just get good documentation.  It also satisfies my rule-following nature.  I follow the rules and know that we have a plan for at least placing a consequence in place.  A contempt hearing is no where near as involved or expensive as getting the order in the first place.  We have a list of over a dozen items now (over a 10 month period) and my lawyer has decided it is time to serve my ex in a moment that should frustrate him.

These are lawyer games, but it is the best I have come up with.

I am sorry Penny Lane.  I do not know if it helps to hear, but my kids have started to figure this stuff out.  It seems my ex rants about it a lot to them.  They do not like that and they can see he is being unfair.  They seem to approve of us working to stay above the fray.

[Penny Lane]

I actually laughed out loud at this:

Never could a sentence in a contract be less ambiguous.  But ---oh the many paragraphs he writes to explain why he does not have this obligation in any given exchange. 

That all feels very familiar. I suppose even if they did write out every right of first refusal scenario (It applies when you're at work, when you're at a party, if you're on a plane or on a train, in a house, with a mouse, whatever) she would still find a reason why THIS party is an exception, THIS workday doesn't really count.

DH and I have discussed the possibility of him filing a contempt action but my question is what is the bigger picture purpose? Like if BM isn't paying bills, the judge can order her to pay them. If a parent were denying visitation, the judge can order makeup time. Those remedies make sense to me. But for the parenting plan stuff, is the goal just that the judge gives a fine for not following the plan? Or can the judge order the other parent to follow the plan going forward, with the possibility of more fines? Can the judge make changes to the plan in response to a finding of contempt?

Maybe some of this depends on the state. And maybe, even if there are no long term changes, getting their hand slapped by a judge would be enough to deter bad behavior for awhile.

I'd be interested to hear how it goes for you if you want to come back and update us all.

[Arkhangelsk]

On a plane and in the rain!

I will let you know.  Part of it stems from the assumption that we will end up in court periodically and the contempt proceedings serve to remind the judge that my ex annoys her.  So, we are working towards building a record that my ex is causing issues on purpose.  M lawyer says that after awhile, and especially after we won a contempt hearing, the judge is likely to begin to be far less patient with him.  We do a fair amount of motions court too. 

So, for example, the ex refused my request to take the kids to their own science fair (which was on his custody day).  The judge remembered that my ex did not follow her verbal comment to him last year  and left my partner and I standing at the science fair with no kid.  So, we had a motion that asked for the judge to compel attendance this year.  The judge did not even let my ex's lawyer speak.  She did yell at the lawyer.  And signed an order giving me 3 hours of custody that night (for which my ex MOST CERTAINLY refused to drop the kids off - I went and picked them up).  I hope my ex's lawyer did not enjoy this moment.

Sooooooooo.  1.5k spent in legal fees and a win, right?!  Oh, no, no, no.  Then my ex went on a campaign telling the kids that only cool way to do the science fair project was with him, not with their allegedly evil, but science loving stepdad.  So much chaos and stress was created in our household.

However, my ex likes to sue us and he likes to accuse us of abusing the kids.  So having a long record of super reasonable legal motions on our side and a record of him just being ridiculous feels like it has some value.

Also - I want the pattern to go like this.  He does something insane and it costs him time and money.  Whenever he (very rarely) does something reasonable, I respond with effusive praise.  I do not know whether this will work.  But it does help me.  I feel like I am fighting, instead of getting crushed. 

[Penny Lane]

Thanks. That's all very helpful. I think I'm going to need to wrap my head around the idea that the possibility of litigation is always just around the corner for DH. His goal in settling (just a few months ago!) was to come up with a system he could live with, that would work long-term. But, unsurprisingly, BM is already violating the terms of the agreement in this and a variety of other ways.

I was going to type out a whole thing here about several other sets of bs that she's dumped on DH but they're all basically the same as this - won't follow the order, doesn't act in good faith and has wildly different sets of rules for herself as DH.

To HotCocoa's point, I don't know if it's worth going to court over this, but I also think it appears to be increasingly inevitable that they're going to go back to court over something.

I was really looking forward to a respite.

[athene1399]

It's all just a power play. And they know what they can get away with because they know we will follow the rules. It must make them feel good to have their own set up rules that we can't also follow. Probably puts them on a power trip. The rest of their life is in chaos, but they know how to bend custody agreements like a champ and know that unless we are a millionaire who can dish out court fees, then there's nothing we will do about it. I'm sure there's so much supply there they are addicted to it. Finding what they can and can't bend. And when we shut down one way, they find a new one. That's why it never ends. Plus the kids are torn because they love both parents, and the PD parent understands this and manipulates the kids for supply. Little minions who worship them no matter what, either due to fear or love or a combination of both. Parental alienation and bending custody agreements are two of the things PDs excel at. 

But I guess we combat that with radical acceptance and medium chill/grey rock. And we support the crap our of our kids/step-kids, showing them we love them whether or not they live up to the PD's standard. We will not rage if certain expectations are not kept. We love unconditionally. And that's why we have to play the long game. We hardly win in the short-term, but I'd like to have hope that we win at the long-term.  Plus we have the resilience and skills to act like adults in trying situations. This is where the PDs have difficulty. And sometimes watching an adult have a full-on temper tantrum is hilarious, but I do have a dark humor streak. 

The drama is inevitable. In some cases, court may be inevitable, and I am sorry for that. As our L said, you really can't stop her from petitioning if she thinks she deserves something. But we got this. We've made it this far and we are still going strong! And we have each other. The PDs burn so many bridges, while we can keep a consistent support system of family and friends, including those on this site.

I feel like this pep-talk was more for myself, but I hope it helps!