Right of first refusal

(Photo credit: Bill Branson (Public domain), via Wikimedia Commons)

(Photo credit: Bill Branson (Public domain), via Wikimedia Commons)

A “right of first refusal” provision sometimes is included in negotiated parenting plans and custody orders. It says that if a parent is scheduled to have parenting time during a given period, but is unable to care for the child throughout the entire period, s/he must offer the other party an opportunity to care for the child; and this offer must be made before placing the child in the care of any other person, or in a child-care facility.

Because parents do not have a common law right of first refusal, its existence is entirely dependent upon contract. If the parties do not provide for such a right in their divorce or custody agreement, it does not exist.

Since children generally benefit from frequent contact with both parents, it could make sense for a legislature that is concerned about promoting the best interests of children to consider establishing such a right by statute. For example, legislation could be enacted to require the inclusion in every custody order of a provision giving each parent a right to provide direct care for their children before the other party places the child in the care of a third person, provided the parent is available, willing and able to assume such care.

Of course, legislation of this kind would need to be limited to situations in which there are no restrictions on parenting time. A child abuser, for example, should not acquire any greater rights of access as a result of an enactment of this kind than s/he would otherwise have under existing law.

Not everyone may want to have such a provision included in their custody orders. There does not appear to be any good reason to force this right on people who wish to waive it. Accordingly, a legislature considering this kind of bill may want to make it subject to the condition that it applies “unless the parties otherwise agree.”

In lieu of mandating the provision in all custody orders unless there are grounds for restricting access or the parties otherwise agree, legislation could simply direct courts to “consider” including such a provision. This option is not as satisfactory, however, because it provides no standard for the exercise of a court’s discretion, thereby making it vulnerable to abuse, or at the very least, creating the appearance of impropriety and unfairness in some cases.

To be workable, the legislation should define the circumstances under which the provision is triggered. For example, the definition of “care of a third person” should not be so broad as to include the child’s school. A legislature will need to consider, though, whether pre-schools fall within the definition of “third person care,” on one hand, or “school,” on the other.

A legislature should also consider the length of time needed to trigger the right. If it were to apply to all third-party care, then it would be triggered anytime a parent wanted to leave a child in an older sibling’s care while making a quick trip to the store, for example. That would seem to be unnecessarily burdensome.

If it is only to apply to longer periods of time, then the minimum period of time to which it applies should be specified.

Of course, even if no legislation of this kind is enacted, the parties to a custody or parenting time agreement may still choose to voluntarily include such a provision in their agreement or order. The same general kinds of considerations apply in both cases. In addition, in order to prevent subsequent disputes, it would be a good idea to include details about how far in advance notice must be given; how it must be given (e.g., in writing); how long a party must wait for a reply before arranging third-party care; and who will be responsible for pick-up and return.

Whether the provision is included in a reform bill or in a voluntary agreement, some thought ideally should be given to the question whether and how providing direct care at the other parent’s request will impact the calculation of child support, if at all. Short periods of time (e.g., a couple of hours a few times per year) normally should have little or no effect on responsibilities for support. Longer periods of time, on the other hand, can yield inequitable results. If the noncustodial parent ends up providing a substantial amount of direct care, a good argument can be made that the amount of his child support obligation should be reduced proportionately. Accordingly, some thought should be given to whether the exercise of a substantial amount of “first refusal” care should be grounds for modification of the support obligation; and if so, what amount of time should qualify as “substantial.”

My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:


Mandating findings on all factors in custody cases

Another kind of approach to custody law reform involves mandating consideration of a particular factor, or set of factors, in every case.

The best example of this kind of reform is the “domestic violence” factor. Although courts have always had the ability to consider the impact of domestic violence on children, a concern arose that courts may not be giving this factor sufficient consideration. In 1990, a joint resolution of Congress urged states to adopt a presumption that an award of custody to an abusive spouse is detrimental to children’s interests.1 The American Bar Association adopted this recommendation, and in 1994 it was incorporated into the National Council of Juvenile and Family Court Judges’ Model Code on Domestic and Family Violence.2 By 1999, nearly every state had enacted legislation requiring courts to consider domestic violence before making custody decisions.3

To ensure judicial compliance with legislation mandating consideration of a particular factor or set of factors, the legislation may require a court to make a written finding of fact on the factor or factors in every case (or in every case in which an allegation raises the issue.) Requiring written findings also helps ensure that there will be an adequate record for review in the event the order is appealed.4

Mandating consideration of all factors listed in a state’s “best interest” statute goes part of the way toward reining in abuses of discretion in custody cases. So long as the factors themselves are vaguely worded, however — and so long as they are unaccompanied by any overarching, meaningful standard for their application (i.e., something a good deal more specific than an individual judge’s opinion about what is in children’s “best interests”) — mandating consideration of factors cannot be a complete solution.

My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:


  1. H.R.J. Res. 172, 102d Cong. (1990).
  3. Hon. Judith J. Gische, Domestic Violence As A Factor In Custody Determinations In New York State, 27 FORDHAM URB. L.J. 937, 939 (1999). For an example of such legislation, see Act of May 21, 1996, ch. 85, 1996 N.Y. Laws 273, 275, providing that were there are allegations of domestic violence in a custody or visitation proceeding, “and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section.” See also 1997 Or. Laws ch. 707, § 35 (amending OR. REV. STAT. § 107.137 (1995).) Since then, many states have established a rebuttable presumption that an award of custody to an abuser is contrary to children’s best interests.
  4. See, e.g., MINN. STAT. § 518.17 (2012) (requiring the court in a custody proceeding to “make detailed findings on each of the |“best interest”| factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.”)

A Note About This Blog

Most of the responses to the posts on this blog (other than blogspam) are constructive. Every now and then, though, I receive one that is not. I’ve discerned a pattern in the latter kind: It invariably comes from someone who has made incorrect assumptions about me and/or the purpose of this blog. I’ve done this before, but it may be useful to explain, once again, the purpose of this blog.

To begin with, it is not an advertisement. Yes, I am an attorney, but no, I am not seeking custody clients. Years ago, when I discerned what I believe are fundamental flaws in custody law, and the legal process associated with it, I resolved not to take part in custody contests. I recognize that this is how family law attorneys get rich. I am not one of those attorneys.

Since it is not an advertisement, I suppose some explanation for why I am doing this in order. There are several reasons. To begin with, I have a great deal of respect for the American constitution and the fundamental rights it was designed to protect. I am troubled by family court violations of them. More than that, I am deeply troubled by the disruption, acrimony, and anguish that routinely running custody cases through an adversarial system that is intent on declaring a “winner” causes to parents and their children. If you’ve ever seen children crying after being told they can’t see one of their parents anymore, or known a parent who has been driven to view killing himself, herself, the other parent, or her children as an outcome preferable to “losing” a custody war, you might understand. As hard as it may be to believe, not all people operate exclusively from a profit motive.

In all the years I have been involved with people who are disenchanted with the current system, I have noticed that discussions tend to focus more on the problem than on solutions. I have seen many forums for people to fix blame. “The problem is greedy lawyers;” “the problem is corrupt judges.” Oftentimes, this seems to be the stopping point. Evidently, some people don’t believe any solutions are possible. When someone does come to a conclusion that he or she has found a solution, the next step almost inevitably seems to be to take up arms and fight for it — very much like the inclination to take up arms and fight for sole custody of one’s children.

My hope for the “History of Custody Law” blog was that it would provide useful information to those with a genuine interest in law reform in this area. The theory was that gaining insights into the origins of a problem can better equip a person to deal with the contentions of opponents of reform, i.e., the defenders of the status quo. And as the old slogan goes, those who don’t learn from history are doomed to repeat it.

My hope for the “Future of Custody Law” blog is that it will provide reformers a supply of ideas upon which to draw, and suggest an outline of an analytical framework for their evaluation. In doing this, I may attempt to offer some discussion of possible advantages and disadvantages of an idea, but my intention is not to advocate specifically for one kind of reform or against another kind of reform. My intention is to try to lay out ideas that others have come up with, along with some that I have come up, and to subject them to logical, practical and policy-based analysis. In some cases, this may involve summarizing the work that others have already done; in others, it may involve beginning that kind of work for the first time.

So, for example, when I post a discussion of a possible new “best interest” factor, or of how an existing “best interest” factor might be improved, I am not instructing the reader to go out and start lobbying legislators for it. Nor am I suggesting that this is the only possible solution. Nor still am I suggesting that this idea is superior to all others. I am simply letting people know about it, and sharing what my thoughts about it are. It is up to you to think further about it if you are so inclined, and it is up to you to decide whether it is a good idea or not.

Similarly, when I discuss more sweeping kinds of reform — whether it’s presumptive joint custody, limiting court jurisdiction, mandating mediation, abolishing custody labels altogether, or whatever — the purpose is simply to facilitate — or in some cases, begin — a discussion of these ideas.

I do moderate comments on the blog. It is necessary to do this, given that over 90% of them are what is known as “blogspam” – messages designed solely to advertise things like pharmaceuticals or to boost a commercial web site’s search engine rankings. Your chances of having a comment approved increase greatly if you actually have something constructive to contribute to the discussion, and if you refrain from being a bigot.

Thank you for reading.

Responsibility and commitment as new “best interest” factors

(Photo: Kattygalvez, public domain)

(Photo: Kattygalvez, public domain)

Recognizing the importance to children of growing up in an intact family, and the painful impact of divorce on children, a legislature may want to consider adding a factor favoring the party who has demonstrated the greatest commitment to preserving the family unit. This new factor might be worded something like this: “responsibility, dedication to family, and except when it has been breached, respect for the marriage commitment.”

On the other hand, people should not be expected to sacrifice their lives or health to preserve a bad marriage. Just as the “disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child” factor is subject to an exception for cases in which domestic violence has occurred between the parties, so the “respect for commitment” factor could be made subject to a domestic violence exception. No one should not be expected to remain committed to a spouse who has perpetrated domestic violence against him or her, or against the children, or who has breached the marital contract in some other way, such as by committing adultery.


While adding new factors and modifying existing factors can provide courts with better guidance about what kinds of considerations are relevant to custody determinations, they do not provide courts with any guidance about how the factors are to be applied either as a whole or relative to one another. This leaves too much room for the operation of biases and prejudices that may have very little to do with what is in children’s best interests in particular cases. To give prejudices and other factors that may not be conducive to children’s best interests less room to operate, the overarching goal of family law policy, together with a starting point (or default position) for custody cases should be defined. There is room for debate over what these should be. Whatever they are, though, they will need to be a little more specific than “whatever is best for children.”

My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at: