The Right of First Refusal in Custody Cases

In Utah custody cases the Court will often adopt a “right of first refusal” giving the nonresidential parent the right to care for his or her child during the custodial parent’s time while the custodial parent is unavailable because of work, school, or other reasons. The intent of the rule is to maximize the nonresidential parent’s time with the child and avoid unnecessary childcare costs when the nonresidential parent is willing and able to care for the child for free. It is also based on the policy that both parents have a fundamental right to the care and companionship of their children that takes precedence over others.

The advisory guidelines in Utah Code 30-3-33(15) state “parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. …” Notice however the statute merely states parental care is “presumed to be better” and “the court shall encourage the parties to cooperate …” This means the statute itself does not impose a right of refusal; it merely suggests it be adopted. This is important because if your custody order does not explicitly make the advisory guidelines mandatory or explicitly adopt a right of first refusal then merely citing Section 30-3-33(15) in your custody decree does not make it binding.

When adopting the right of first refusal the Court will commonly adopt a period of time necessary to trigger it. A 3 to 4 hour threshold is typical but Courts will sometimes go as short as 30 minutes or as long as overnight. The intent behind this threshold is to mitigate parental conflict so neither parent has to relinquish their parent-time if they are making a quick trip to the grocery store while avoiding the problem of custodial parents farming the child off to babysitters all day while the custodial parent is at work.

The way the right of first refusal works is if the parent who has the child knows they will be away for a certain period of time they will contact their co-parent and let him or her know they need someone to watch their child and offer their co-parent the opportunity to do so before arranging for someone else to do it. The other parent is expected to promptly respond either accepting this opportunity or saying they cannot so the asking parent can make appropriate plans. If the parent exercising this right wants to provide childcare then he or she is expected to pick up and return the child.

A right of first refusal is ideal in cases where parents are not sharing equal custody and it would be unjust to restrict the noncustodial parent to minimal parent-time (e.g. every other weekend, a midweek visit, and alternating holidays) even while the custodial parent is away. And to require the noncustodial parent to pay a babysitter to watch his/her child when the noncustodial parent is available to provide free childcare would be adding insult to injury. However, the right of first refusal can become problematic in cases where parents are sharing equal (or close to equal) custody rights because there is a diminished risk of the child being farmed off to babysitters and it often provokes fights and stalking-like behavior between parents if they think their co-parent is not strictly adhering to the rule. For that reason we generally encourage a right of first refusal in situations where parents are not sharing equal custody but do not recommend it when parents are sharing equal (or close to equal) custody.

Are you getting all the parent-time you deserve with your kids? If not give the smart, aggressive family law attorneys at Wiser Family Law a call today at 855-254-2600.