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Question About Birthday Clause

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SBB posted 8/27/2013 03:34 AM

OK. So DD2s 3rd birthday is coming up – it is a Monday. He has the girls for the weekend prior and will drop them off to school/daycare on that Monday morning and then I pick them up from daycare/school that afternoon as it is my normal scheduled night with them that night. As we are both seeing on her actual birthday I didn't think we needed to discuss it.

Birthdays are covered in our orders as an exception as follows – earlier clauses outline our 2/2/3 schedule quite clearly:
Clause 7.6: “if any of the Children's birthdays fall on a school day, then the Children shall spend time with the parent who did not have the care of the Children on the morning of the birthday from the conclusion of school until 7pm on the children's birthday. If any of the Children's birthdays fall on a weekend, then the Children will spend time with the parent whom that are otherwise not with on that weekend for four hours by agreement and failing agreement, from 1pm to 5pm on the day of the birthday.”

Him: “could you please confirm if you require me to pick the girls up the evening of [DD2] birthday (as per clause 7.6)? I’m relaxed about this seeing as it is your night to have them, but am equally happy to pick them up to stay with me.”

Me: “I suggest you read Clause 7.6 of the agreement. You have [DD2] on the morning of her birthday. I do not believe further discussion is required.”

His View: “In terms of the clause, I suggest you read it. It states, quite clearly, that you have [DD2] until 7pm because you did not have care of her that morning. It may not reflect what you wished, but that is exactly what it says.....perhaps [my L] could assist you in interpreting what is, in effect, his document??”

My Response: “I suspect it is an interpretation issue. My understanding is that clause is only relevant where the parent who does NOT have the child on the morning of her birthday also does NOT have her on the evening of her birthday. That is not the case here. The intention of the clause is so the birthday girl gets to see both parents on her birthday. Again, no further discussion is required.”

I suspect he thinks the fact that I am not the parent who has them that morning that somehow this clause changes the normal 2/2/3 schedule so that I only have them from the conclusion of school until 7pm and I have to hand them over to him at 7pm that night.

This clause doesn’t replace the schedule – it is transposed ON TOP of it to ensure both parents get to see the girls on their actual birthday. It is not required when both parents already get to see her as is the case for this birthday.

He isn’t trying to exercise his perceived right here so I don’t understand why the need to be so obtuse. Maybe he is trying to make it crystal clear to me that he is ‘letting’ me have the girls that night.... even though it is already my night. Because he's so magnanimous dontcha know. .

How do you all interpret this? Am I missing something blatantly obvious? I’ve shared this with a few friends (including several lawyers) and they say they have NFI how he interprets it the way he has. The clause is clear. I just want to check with my SI D PhD's too as I have 27 birthdays to get through with this muppet.

I wish I could say he wasn’t this stupid when I was married to him. Alas, I can’t.

aesir posted 8/27/2013 04:24 AM

Tell him you will pick her up and keep her until 7 PM in accordance with the agreemment, then at 7 PM you will resume custody.

SBB posted 8/27/2013 05:15 AM

Aesir! Don't encourage me. I've been a a Superstar NCer for most of this year. I hardly even notice when he tries to yank my chain these days. My give-a-fuck appear to be on the fritz. Yay!

But IT WOULD BE AWESOME to send that!

homewrecked2011 posted 8/27/2013 05:31 AM

He wants attention thru an argument so you can't enjoy the birthday nor the rest of your week.


Good job on not getting into an argument.

SBB posted 8/27/2013 06:31 AM

He wants attention thru an argument so you can't enjoy the birthday nor the rest of your week.

Aaargghhh.... man, I wish he would at least TRY to pretend that his life is better this way. Mine sure is.

alphakitte posted 8/27/2013 06:38 AM

What Aesir said.

If he fails to ubderstand that then state it exactly as Aesir stated it. That should shut him up.

Forget him!

MovingUpward posted 8/27/2013 06:49 AM

I interpret the birthday clause to fall on top of the normal custody. So on Monday without the birthday it would be that he dropped the girls off at school/daycare and that you'd pick them up. Then from the birthday clause, he had the girls in the morning therefore the time allotted for birthday in the evening goes to you. It appears this clause if a way to ensure that on days where one parent has the kids all day in which a birthday falls that there is time for the other parent to see them.

Now with legalese you go with the written word and you don't have interpret any spirit of the agreement. The clause clearly states that whomever doesn't have custody of the kids that morning gets time from after school until seven. What this does mean is that there will eventually be a time when you are having to drop the girls off on a birthday morning and would then not get anytime with them in the evening.

So if you can handle that arrangement then you have every legal right to stand on your position and it seems the settlement agrees with you. If you don't like the possibility of only have a morning on one of your kids birthdays then you can renegotiate (don't do this verbally as you will want written proof of the agreed amendment).

[This message edited by MovingUpward at 6:51 AM, August 27th (Tuesday)]

SBB posted 8/27/2013 07:14 AM

Thank you Moo. That is a good perspective that I hadn't thought about.

On examination I am happy with the converse because the 2/2/3 schedule we have means the parent that has them ANY morning also had them the night before.

As they get older we'll also both be able to wake them earlier or keep them up later to do something special (I think!).

I'm also thinking of starting a different family custom so they don't have to eat 2 cakes on their birthday! Like making chocolate strawberries together or something.

If he was saying he would like some more time with her on her actual day I would absolutely agree to share some more of it for her sake even outside of the agreement (even though I doubt he would).

I like the question though because I really don't want to be obtuse here myself. So thank you.

SBB posted 8/27/2013 21:08 PM

Well - I had to use Aesir's line this morning as it appears he now does want to exercise his perceived right here. I've repeated my earlier assertion and asked him to direct future comms on this issue to his L.

My L says I have a great case for costs if he does push this. Giddy Up Buttercup.

So annoying but. Be invisible already!

stillstrong posted 8/27/2013 22:07 PM

I think the clause is muddy, and ripe for arguments. This may occur year after year so think carefully about what happens when you're the morning drop off parent and make sure you can live with it.
Also, I think having 2 birthday cakes is one of the few benefits of being a child of divorce and I'd kick and scream if one parent tried not to give me cake!

SBB posted 8/27/2013 23:47 PM

I think the clause is muddy, and ripe for arguments.

Really? That surprises me. I wouldn't call it 100% watertight but I don't think its muddy.

I will be the morning drop off parent for her next birthday and I'm not unhappy with only having the morning as I get to be with her when she wakes on her birthday.

I understand where you are coming from though and I would absolutely be accommodating and share the time if he was interpreting it this way in an effort to spend more time with her. The fact is he is not - he is merely trying to stick it to me for reasons known only to him.

stillstrong posted 8/28/2013 10:38 AM

I think the clause is muddy, and ripe for arguments.

Really? That surprises me. I wouldn't call it 100% watertight but I don't think its muddy.

I was reading it with no knowledge of your regular schedule, and I felt it wasn't clear. All that stuff about school days, mornings, weekends, 4 just seems too confusing.
I interpret it as: the kids were not with you in the morning so you get them from after school until 7PM. Then he gets them from 7pm, but since it's your night he has to bring them back?

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