Just got off the phone with my lawyer and feeling good about a path forward as it relates to these dinner dates. My lawyer said that she is essentially hanging herself as it relates to this situation, and advised that we begin by sending notice to her counsel. Her latest e-mail she stated:
When you dropped the girls off, [daughter] asked for a date on Thursday. I said no we have church. You asked for Wednesday. I said that might work but I need to check my calendar. I forgot we had a commitment that evening with [new husbands]'s colleague.
Moving forward dates night requests need to be written - putting me on the spot is unfair [me: then why did you agree to it at the time and nod your head when I said I'll be here at 5:00pm to pick her up!?]. I don't have my calendar in front of me, it gets everyone's hopes up, and I don't want to make a unilateral decision without consulting [new husband]'s schedule.
With respect to this week/month, we have already had this conversation. See emails below.
My lawyer said that my ex is clearly putting her new husbands position in her daughters lives above mine and that my daughter doesn't need to miss going to dinner with me to visit with her new husbands work colleague. She said that according to our separation agreement (which became our divorce decree) we must provide reasonable access to the kids so long as it's coordinated between us in advance... which is what I've been doing and she just keeps denying it.
My lawyer liked my idea of writing up a schedule for 2017 and outlining the 26 dates I would like to take my daughters to dinner. Above my ex's last e-mail she actually asked for it in writing, so hard for her to then reject it. Establishes my intent to continue this time and my coordination with her on it. I know my ex will hate seeing a schedule for the entire year... she'd prefer to nit pick and reject certain weeks when she feels necessary to express her control. My lawyer said that if she rejects my legal notice (being sent to her counsel tonight) to have the date night with my daughter this Wednesday, or my outlined plan for 2017 then our next step will be mediation attempt (agreement says we must first go that route before taking legal action)... but that if it gets that far she's going to start to cooperate, likely, because everyone at a mediation table will tell her she's being unreasonable if she's putting her new husband first in her daughters lives at the expense of their relationship with me.
In response to the current custody...
Our separation agreement (December 2013; later ratified in our divorce Jan 2015) says we have joint legal custody and therefore retain joint responsibility for the care and control, and joint authority to make decisions concerning the children. The primary residence is listed as wife subject to husband having said children for liberal periods of time throughout the year as set forth by...
"Both husband and wife shall have access to children at all reasonable and seasonable times and places, as agreed upon by parties from time to time and conditioned upon reasonable advance notice of intent to exercise said rights of access and visitation... specifically husband shall have right to children every other Thursday 6pm to Sunday 6pm, and two nonconsecutive one week periods over the summer. As well as the following holiday schedule"
It continues to split things up more 50/50 based on holidays and spring/winter breaks... but she ends up with about 75% of the days in total.
It's never been an issue to this point where she's decided to just withhold them from me for 10 straight days in a row... she seems to think she has the right to do that now because the decree doesn't specifically state I get these dinner dates, although we've done them ever since our separation. My lawyer says they are established and also fall within the right to have access to children at all reasonable and seasonable times and places, agreed upon by parties from time to time with advanced notice.
I asked again about my desire to get to a 50/50 split on the physical time with the kids and she said that will be difficult but not impossible. She said we need a change of circumstances in order to revisit it and then will need to outline why it's in the girls best interest to change the current schedule to fit the new desired one. She said most often this happens when the kids get a little older (into preteen and teen years) and they start to establish a desire and voice an opinion of spending more time with one parent they may be seeing less of. This will definitely be my oldest (turning 8 soon)... she keeps asking me why she doesn't get to see me as much as mom. She has been pleading to even the time out. Her mom tells her that the judge made it this way. I've been telling her, your mother and I had an agreement until you guys were in school after which you were supposed to spend equal time between us... unfortunately your mother and I cannot see eye to eye on it now, but it's because we both love you so much and want to spend as much time with you as possible. Then I assure her I'll continue to fight to get more time with her whenever I can. I'm trying to keep her out of it, and get her to stop asking her mom on a weekly basis. She was doing that last summer, and I think it took a toll on both my daughter and her mother. My daughter wants things to be fair, she is rather mature for a 7 year old... and in a way that's good but in other ways it's sad. I don't want her to grow up too fast or take on the responsibility of this all. I struggle with how to best address this with her when it comes up, though I feel I'm handling it well.