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.”
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