First Right of Refusal: The Parenting Time Plan Risk

Often Orders and Judgments that contain a parenting time plan will contain the “First Right of Refusal” (also known as First Right of Caretaking) provision. The First Right of Refusal will often be enacted after a certain number of hours. The hours will vary per case. Some parenting time plans use two to four hours, meanwhile other parenting time plans will enact the First Right of Refusal after an entire night.

This provision is seemingly innocent. It gives both parents the first right of refusal if they are unable to exercise their agreed parenting time. If they are unable to do so, the other parent has the first right to care for the child.

Drawbacks of The First Right of Refusal Provision

There are issues that come with the First Right of Refusal provision. Some judges will not even sign an Order or Judgment with the First Right of Refusal provision due to the possibility of abuses and issues. Some of the abuses that can occur include:

• When one parent does not allow the minor child to go to daycare/afterschool care or camp during the other parent’s parenting time because the parent who’s parenting time it is not currently, believes that they should have the children during these times when they are available.
• When one parent does not allow the child to stay overnight with a friend or a relative because the other parent will not be there, meaning that they should be allowed to have the overnight.
• When one parent does not allow the minor child to spend time with a stepparent because the other parent is not there.

Even if the abuses above never happen in your matter, these other issues may arise:

• Which parent will be responsible to transport the child back and forth for the parenting time?
• What happens when the parent puts a time restraint on when the other parent must pick up the child when utilizing first right of refusal?
• What happens when the other parent does not give an actual answer as to if they can take the minor child? How long does the parent have to wait before trying to find someone else to care for the child?
• What happens if the parent who is currently exercising parenting time has family that could easily watch the minor child at the parent’s home, so it does not disturb the minor child?

These unfortunate issues and abuses do come about. This provision can be good for some, but for other’s it becomes more about what is best for either parent and not what is best for the minor child. These issues really seem to come about when one parent wants to control who the minor child can spend time with. Especially in the situation where grandparents and stepparents are involved.

Benefits to The First Right of Refusal Provision

There are always arguments that coincide with the minor child’s best interest when being with either parent. However, there are also benefits of allowing a child to be cared for by someone else other than a parent. The benefits can be some of the follows:

• The child could remain in the residential parent’s home without having to go to the other parent’s home
• Child can create bonds/relationships with extended family members
• Child can gain social skills and social relationships with others such as friends through sleepover nights and extended stays
• Child can develop social relationships and gain friends through childcare and afterschool care with other children
• The minor child can keep the same routine and schedule of being in one parent’s home pursuant to the parenting time plan
• Can resolve issues regarding transportation as to who is going to pick up and drop off the minor child
• The parent can also ask a paid in-home care provider to do other things within the home, such as housework, meal prep, and homework help

The First Right of Refusal provision was meant to have the best intentions. Unfortunately, individuals have taken advantage and abused the provision to benefit themselves and not the minor child. The argument has always been that the minor child should be with one of their parents – but if this was always true, then the minor child would never be able to partake in school or extracurricular activities.

When coming up with a parenting time plan, it is not always necessary for a First Right of Refusal provision to be added. In many cases, when one parent is not available that parent will ask the other parent to care for the minor child.

With the proper language, the First Right of Refusal is able to work in cases. An attorney should know the proper language to add to a parenting time plan for a matter as certain cases more need more language to be added. That way there is less likely to be any abuses or issues to arise. This should be done on a case-by-case basis.

Further Information

For more information, please see article “Parenting Plan Pitfalls: the ‘First Right of Caretaking’ Clause” by Annette Burns on www.familylawyermagazine.com.

The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. Or contact our new location in Alexander City, Alabama at 800-809-9414. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan primarily including Oakland, Wayne, Washtenaw, Genesee and Livingston counties.

In Alabama Kathryn practices in primarily Lee, Tallapoosa, Macon, Chambers, Coosa and Elmore Counties.