Legal Question in Family Law in California
Right of First Refusal Clause in dated Stipulated Judgment, can it be removed if
I have a 12yr.child with moderate Mental Retardation, Autism and Mild Cerebral Palsy. I will call her A. I was separated 4/94. I have always had at least 50-50custody. My Stip.Jdmt. was entered 11/99. I remarried days later. My wife takes equal responsibility with the great amount of care needed by my disabled child. We are equally responsible for both children in our family- equal parenting. We now have a 15month toddler. She will be the only sibling for my first child,(Ex is 52, single, working, uses afterschool childcare.) A. will never live on her own, never be independent. She functions at the level of a 3-4 yr. old. My Stip. Jdmt. has a Right of First Refusal clause that allows my Ex to retain custody of A.if I am to be out of the LA area for more than 48hrs. We share true 50-50 joint physical and legal custody (week on, week off). So as to prevent a change in custody schedule that is tramatic for a child with these types of disabilities, so as to not interrupt the bonding time between the two children (they are only with each other every other week as it is), so as not to interfere with the relationship that my daughter has with her stepmother,(they are very close and she calls my wife, Mom)can I have this clause removed?
2 Answers from Attorneys
Re: Right of First Refusal Clause in dated Stipulated Judgment, can it be remove
Dear Inquirer:
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NOW, IN RESPONSE TO YOUR INQUIRY --
To modify a child custody order that has been made by way of LITIGATION, there must be a change of circumstances. Sounds like your order was stipulated, not litigated. If so, the court probably has the jurisdiction to modify the order if doing so what be in the best interet of the child(ren). Otherwise, it usually isn't too difficult to show a change of circumstances (for example the fact that you apparently have remarried and there now is a beneficial relationship with step-mom). Maybe you and your ex can just agree that dropping the provision would be best for your child.
Thanks for sharing your interesting inquiry with us on LawGuru, and good luck with your case.
Re: Right of First Refusal Clause in dated Stipulated Judgment, can it be remove
A child custody order is always modifiable. I cannot guarantee the order will be modified, but the court does have the power to modify it if it believes it is in the best interests of the child.
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