Second Thoughts on First Right of Refusal

by Annette Burns on November 15, 2008

CHILD CARE FOR CHILD AND FIRST OPPORTUNITY TO OTHER PARENT.     When a parent has residential responsibility for the child that parent will be responsible for providing childcare or supervision.  However, if that parent is unable to care for the child for more than six (6) consecutive hours, the other parent will be afforded the first opportunity to care for the child.

 

It seems the most logical thing in the world: in a parenting plan, the parents agree that if the parent who has parenting time with little Jason (the Custodial Parent, or CP) has to be away from him for a given number of hours (say, 6 hours), the other parent (NCP) should be offered the first right to take care of Jason before someone else is asked to do it.  It seems so simple. The other parent is ALWAYS the preferred caretaker of choice—right?

 

Since I’ve been doing parenting coordination work, my view of the first ROR (more appropriately called “first opportunity to care for little Jason“)  has been turned around and changed many, many times.   I’ve seen the provision that the other parent should always care for the child abused so many times, its initial good and logical purpose has lost most of its meaning.

 

I have had parents, and sometimes attorneys, argue to me that the other parent is always, always, ALWAYS the most appropriate person to care for the child, when the CP is unavailable.   I’m always wary of “always” arguments.    So, the NCP is the preferred caretaker, even when the period of time is four hours, the NCP lives more than one hour’s drive away, and there is a stepparent available to care for Jason in Jason’s own home?    Or, the CP has to work 7pm to 4am, meaning that the child will only be at the NCP’s home during sleeping hours, and custodial parent would have been home before the child wakes in the morning?

 

One thing is clear to me: the issue of first ROR does not discriminate based on gender.   The majority of parenting coordination cases I have are either 50-50 shared parenting time or darn close  to it.    Mothers are asking for unconditional and unlimited first ROR as often as Fathers are.  Both genders are using and abusing the first ROR equally.

 

Consider the following situations when a first opportunity to care for Jason can be abused.

 

Stepparents.    I started parenting coordination work with the notion that a parent is a parent is a parent, and a parent always trumps a stepparent’s time.  I’m wavering on that.   We live in a society of stepfamilies, and the stepmothers and fathers that I’ve dealt with are for the most part caring, loving, and helpful with their spouse’s children.   I have yet to meet a stepparent who I felt was trying to steal someone’s child away.   

 

I’m ready to confess that in some situations, I believe that a child staying with step-dad for a few hours while Mom is away at work is preferable to putting the child in a car and trucking him off to Dad’s home for that short period of time.

 

Grandparents.  Is a child really not allowed spend an overnight with a grandparent?  Can Father’s Mother really not care for the child while Father goes out for a few hours, or even overnight?  Does a child lose all right to stay with a grandparent because of a divorce, unless the other parent gives up his/ her right to have the child first?    I can’t sign off on that interpretation of a first ROR.

 

School friends.  More than one of my parenting coordination cases have brought me the issue of a child spending an overnight at a friend’s home, and the complaint that this should not have occurred without offering the other parent the overnight first.  

 

Test yourself.     See what you would do with the following situations.  In each situation, the parenting plan calls for a first ROR to the other parent for periods of three hours or more.   

 

1.         On Jason’s weekends with Mom, Jason is enrolled in a soccer activity on Saturday afternoons from 1-5.    Father was offered the opportunity to be involved in the activity, but declined to do it on his weekends.  Father now objects that Jason is sometimes taken to the soccer activity by his stepfather, who stays there for the 4-hour activity.  Father asserts that he has to be offered the opportunity to take Jason to the soccer practice on Mother’s Saturdays, if Mom is not taking Jason herself.

 

2.         After his weekends with Mother, Father is to pick up Jason at Mother’s home at 6:30 p.m.  as Jason’s bedtime is 8pm.   Father’s new job sometimes requires him to work until 8:00 p.m. on Sundays, so Father sends his live-in fiancé to pick up Jason at 6:30.   Mother refuses to release Jason to Father’s fiancé and insists that Father personally drive to her door to pick up Jason after he is off work at 8pm.  

 

3.         Mother, a flight attendant, worked a short flight to San Diego which was supposed to be a turnaround, bringing her back to Phoenix by late afternoon on the same day.  Jason was in a school activity until 4pm, and Mother’s return flight to Phoenix got in at 5pm.    After arriving in San Diego, Mother was bumped from her return (same-day) flight and had to stay overnight in San Diego to work a flight to Phoenix the next morning.  Mother was home the next morning by 8:30 a.m.   Mother did not call Father from San Diego to give him the opportunity to pick up Jason from 5pm Saturday until 8:30 a.m. on Sunday.    Jason instead stayed at his home with stepfather, who took Jason to a scheduled birthday party on Friday evening.    Father requested sanctions from the PC.

 

4.         Father properly offered Mother the first right to care for Jason when Father had to be out of town for an overnight, even though both grandmother and stepmother were available to be home care for Jason at Father’s home.   The parties live approximately forty minutes apart.    Father returned to town at 9am the following morning and asked Mother to bring Jason home then so they could attend a family birthday party at Father’s home at 10am.  Mother refused, stating that Father must come and pick up Jason from her home on Saturday morning.

 

The use of first ROR has, in my opinion, gotten out of hand.   It’s gotten to the point where I cringe when I see a parenting plan with a first ROR clause of six hours or less.  (The first-right cases involving an overnight are far easier, in my mind, to resolve.)    While some derivation of a first right is probably appropriate in many cases, the abuse of it requires that when it is granted, specific exceptions must be listed.  The grant of such a right carries responsibilities with it, and one of those responsibilities is that the child’s interests be considered first.  That’s the element that I find missing most often in these cases.

 

What I’m asking attorneys to do is think outside the box when it comes to first ROR.  Don’t jump on the “other natural parent is always the best choice” bandwagon.  Think about it.  Think about your own family, and the caretakers your family used when you were growing up, and the caretakers you used for your own children, and think of what those outside caretakers added to your life experiences.  Think of the logistical problems in always relying on one caretaker (the other parent) for every child-care need in excess of some minimal time period.   And after thinking about it, talk with your clients about that provision and how it can possibly be used against him or her in certain situations.    

 

Add to those thoughts the very high conflict that many of these parents continue to experience months and years after the divorce is final.   If the parents are capable of working together on other issues, the first ROR is not likely to be a problem and common sense will probably prevail for those lucky couples.   If the parents are high-conflict, need every holiday and special day defined down to the minute, and are doing exchanges of the child in public places, then the first ROR is likely to be just another opportunity for conflict.  

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