THE LIZ LIBRARY: LIZNOTES

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The "Right of First Refusal" in Parenting Plans:
when is it reasonable? 20 Questions.

The "right of first refusal" is a provision sometimes placed in child custody agreements which requires one of the child's parents, who otherwise would have "timeshare" prior to placing a child into third party care (such as a babysitter) to first grant the child's other parent the right to care for the child during the period of the first parent's absence. It is not a reasonable provision when it is sloppily thought through and badly drafted, because in such event it will not be practicably fair or workable, and will only exacerbate disputes.

CONSIDERATIONS TO DETERMINE WHETHER A RIGHT OF FIRST REFUSAL PROVISION IN A PARENTING PLAN IS REASONABLE AND WORKABLE:

1. There have been no substantiated stalking or domestic violence allegations made against the requesting party, whether or not same rose to a level that merited the issuance of a restraining order or resulted in a criminal conviction.

[If there have been substantiated stalking or domestic violence allevations, STOP HERE; the request for a right of first refusal is unreasonable. Even if they have not been substantiated, if there have been multiple allegations in a highly conflicted case, or allegations that the party requesting is "controlling", the request for a right of first refusal may still be unreasonable, and should be viewed with caution in light of other considerations.]

2. In the past, the parent requesting the right of first refusal, when given at least 24 hours' notice by the other parent, has never refused to take the child in order to pursue a voluntary or re-schedulable activity of lesser importance than that requiring the temporary absence of the requesting parent.

[For purposes of this question, family emergencies, required non-schedulable work-related activities, and illnesses, injury, and related doctor visits and hospital stays should be considered to take precedence over all other activity choices; significant social activities such as attendance at a family member's wedding, scheduled vacation travel, and events that require costly advance ticketing should take precedence over voluntary work-related activities that can be rescheduled without risking a loss of income or employment; and voluntary or re-schedulable work-related activities should take precedence over re-schedulable or non-significant social activities such as hobbies, parties and dating.]

3. The parent requesting the right of first refusal, when given at least 24 hours' notice by the other parent, has not declined on two or more occasions in the recent past to take the child, or to assist with or attend child activities -- for any reason.

[If there have been two or more occasions in which the parent requesting the right of first refusal has failed or refused to pick up a child from an activity, or to attend a child's activity when invited, or declined to care for the child in the absence of the other parent, STOP HERE, the request for a right of first refusal is unreasonable. The reason for the refusal itself is irrelevant because the pattern indicates that a right of refusal provision will be burdensome to the child's other parent, and tantamount to an indrect means of requiring that parent to have to "report in" the parent's planned activities without resulting in a response from the other parent that is beneficial. Caution also should be exercised (see consideration #1) with regard to the other parent's possible controlling behavior.]

4. The parent requesting the right of first refusal regularly has exercised scheduled timeshare without repeated (more than two) late pickups or returns of the child.

5. The parents are generally cooperative and friendly, have joint physical custody (whether or not equal, and by whatever name), and have confidence in each others' parenting ability. Neither party has filed motions in litigation alleging visitation interference or noncompliance. Neither party has alleged "parental alienation." The parties are not "parallel parenting".

[If parents are highly conflicted, and prone to having arguments or just exhibiting a cold and disengaged "attitude" when making exchanges of the child, the right of first refusal is unreasonable, and the additional transitions are a potential source of detriment to the child. Moreover, for one parent to function in lieu of the other parent's hired or family childminder, that parent must be willing to be contacted multiple times daily, and disclose the very same information about the child's activities and whereabouts as the current timeshare-exercising parent ordinarily would be receiving from a hired childminder. In order for the right of first refusal to not turn into a denigration of the other parent's timeshare, the "right of first refusal" must in fact function as it's posited to function, as a helper position in lieu of third party childcare, and with the same level of communication that happily married parents would exercise with each other.]

6. The parent requesting the right of first refusal does not occasionally use alcohol to the point of drunkenness or become impaired by substances even when that parent is not caring for children.

[This is not a moral condemnation, but it indicates that the requesting parent is not sufficiently ready and able at all times have care of children and thus, requiring that the other parent have the burden of contacting that parent, and disclosing the parent's schedule by offering a right of first refusal is unreasonable. It is also potentially dangerous, since the impaired parent may not disclose his or her impairment, but feel under a compulsion to accept the offered right of first refusal in order to protect his or her ongoing right by taking the child even when the parent is impaired and should not do so.]

7. Neither party has objected to or been recalcitrant in providing any litigation discovery or charged the other parent with discovery abuse.

[This consideration goes to assessing the level of trust between the parties and the degree of openness and honesty. The right of first refusal entails a substantial degree of loss of privacy in that to work adequately, both parents must have no problem freely disclosing their schedules, whereabouts, contact information, and day-to-day activities to the other.]

8. The parents live within a 10 minute drive of each other, in the same school district, or otherwise close enough (depending upon the occasion for which the right of first refusal is being sought), that the right of first refusal arrangements will not create a burden for either the child or the other parent. The right of first refusal will not create a need for the parent otherwise having timeshare of the child to spend increased time traveling, transporting the child, or making preparations. For example, a "right of first refusal" to care for a sick child who will stay home from school is not reasonable where it will entail that sick child having to dress and travel for an hour in rush-hour traffic, or require the working parent to transport the child to the other parent's residence prior to getting to work.

[A right of first refusal for anything less than a multiple overnight trip by the timeshare parent is unreasonable if it will add long car rides and travel for the child during the school week that the child otherwise would not have to suffer, or if it requires that the nonrequesting parent undertake burdensome out-of-the-way travel time, scheduling, and preparation, such as packing the child's things, in order to comply with the right of first refusal, especially if that parent's alternate childcare arrangement was in-home or close to home.]

9. If the requesting parent is the lesser time-share parent, he or she has not sought or threatened to seek additional timeshare via post-decree motions, and is not seeking the right of first refusal to position him- or herself to do so.

[The right of first refusal is unreasonable, and will increase conflict, stress, and distrust, where one parent is or is suspected to be seeking it to position him- or herself to motion for a change of custody. The reverse also is unreasonable; the right of first refusal should not function in lieu of reduced custody timeshare where one parent seeks an unwarranted amount of time for ulterior reasons, such as to reduce child support or maintain control, but cannot or will not exercise it (e.g. because of work demands, or plans to place the child into third-party care with a stepmother or grandmother), and when this is pointed out, offers the "right of first refusal" like a bone back to the primary caregiver. This is a way of obtaining "joint custody in name only" but with reduced financial support obligation to the caregiving parent. Also see consideration #10 and comments, below.]

10. The requesting parent, if the payor, has not objected to the amount of child support or alimony, or sought to reduce child support or alimony, and would not be using the right of first refusal to position him- or herself to do so.

[The right of first refusal is unreasonable where one parent is, or is suspected to be, using it to position him- or herself to motion for a change of child support or alimony, or where it will in fact result in a change of child support because of the application of formulaic guidelines.]

11. There have been no allegations made at any time of "snooping" into the other parent's privacy, and there have not been issues between the parents either before or after separation or divorce involving jealousy, paramours, adultery, or dating behaviors.

[See comments after consideration #12.]

12. The childcare right of first refusal will be requested only for time the other parent will be traveling overnight, or for periods of time in which that parent regularly is at work, and is NOT being requested for occasional evening or weekend time the other parent will be engaged in private social activities, for evening hours the younger child ordinarily would be sleeping while the regular timeshare parent attends a private social activity, or for after-school and evening hours in which the older child otherwise would be studying or attending extracurricular activities.

[A blanket right of first refusal, in order to be functional and able to be monitored for compliance and enforcement, will necessitate that both parents be willing to freely disclose to each other at all times their personal whereabouts, work and social schedules and plans, and even the details of their dating activities, such as times of departure and arrival and destinations for emergency contact purposes -- just as they would for an in-home babysitter. If this level of intrusion into a parent's private life is felt to be unacceptable, or if the intrusion into privacy will be one-sided, then the right of first refusal, if granted at all, should be restricted to more substantial and lengthy periods of time, such as travel out-of-town with multiple overnights.]

13. The right of first refusal is being requested for regularly scheduled time that the child otherwise would be spending with nonrelative babysitters, in infant/toddler institutional daycare, or with stepparents and paramours with whom the child has no significant attachment.

[If the time a child, who is not yet in first grade, regularly spends in nonparental third party care of any kind already exceeds 20 hours a week, and the other parent is ready, willing, and able to provide care, this especially bodes in favor of a right of first refusal for additional hours of care. But compare consideration #14, below, differentiating between enrichment and educational activities and mere child-minding.]

14. The childcare right of first refusal will not interfere with regularly scheduled school, preschool enrichment (educational preschool not in excess of 20 hours a week), or afterschool extracurricular activities of the child.

15. The childcare right of first refusal will not interfere with grandparent and other extended family occasional derivative visitation time.

[A parent should be permitted to "share" that parent's time with extended family members. This does not include frequent and regular childminding by stepparents, grandparents, or other third party relatives while a parent works, both of which should take less precedence than direct care by a child's parent. It does include, however, such things as time over spring break in which a child visits grandma's house, or the occasional babysitting by a grandparent or other relative in lieu of a stranger babysitter, which should not give rise to a right of first refusal.]

16. When the parent who is requesting a right of first refusal is him- or herself exercising timeshare, that parent does not place the child into nonparental (including stepparent) third party care for equal or greater amounts of time than does the other parent from whom the right of first refusal is being requested. In addition, the parent who requests the right of first refusal will be personally minding the child.

[Anything otherwise is hypocritical and should give rise to consideration of ulterior motive for the parent's request for a right of first refusal.]

17. The childcare right of first refusal will not result in a reduction of income for the parent otherwise having timeshare of the child, inhibit the timeshare parent from pursuing reasonable career, educational, or social activities, create significant additional out-of-pocket expenses for the parent otherwise having timeshare of the child (for example, by changing a daycare arrangement from a lower monthly rate to a per diem or hourly rate), or result in the loss of needed regular caregivers or the necessity to pay for duplicate caregiving (for example, a loss of access to babysitting help when employment that was counted on diminishes).

18. The parents are in unambiguous agreement regarding the circumstances that will trigger the right of first refusal, and where the childminding will take place (such as in the residential or nonresidential parent's home if in the nature of and in lieu of short-term babysitting).

[It is unreasonable to "cure" burden defects (such as transportation and packing) in the right of first refusal by permitting a hostile "co-parent" access in the manner of a babysitter to the other parent's home and private life. While this kind of arrangement does work for some parents, they are unlikely to be the sort of parents who would need rights of first refusal dictated in parenting plans.]

19. The parents are in unambiguous agreement regarding the way the right of first refusal will be offered and accepted, and the method of notice and acceptance, such as whether by telephone, fax, or email. The amount of notice time that will be required when the right is offered and for accepting the option is well thought out and agreed to by both parents. The right is structured so that it is functional and flexible, and it will not place the current residential parent under a scheduling burden that will effectively prevent that parent from engaging in spontaneous last-minute arrangements and activities under threat of facing possible litigation allegations of noncompliance or noncooperation.

[If the requested right of first refusal is a blanket right, applying to all instances in which the other parent otherwise would hire a third party childminder, such as a babysitter for an evening out, the parent requesting the right of first refusal must be willing and able to assure that the other parent can readily contact him or her at all times, without delay, and promptly receive a response.]

20. The right of first refusal has not been recommended by a custody evaluator or recommending mediator or GAL, has not been not court-ordered, and is an arrangement that has been freely entered into by two parents in agreement. In addition, no "parenting coordinator" or "case manager" has been requested, recommended, threatened or used in the parents' custody case.

[The presence of one of these "helping professionals" is a bad sign. It indicates that at least one of the parents is being coerced. It also indicates that the parents do not sufficiently cooperate or communicate to make them candidates for a right of first refusal, and that they need bright-line and simple guidelines to show "compliance with their parenting plan". In addition, the flexibility of a childcare right of first refusal will give a parenting coordinator unwarranted opportunity to churn time and fees, and an inappropriate amount of power to pass judgment on and meddle with parents' lives and personal decision-making, as well as with the timeshare arrangement itself.]

liz

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