Way back in 2008, I wrote an article and a blog post about the First Right of Caretaking provision in Parenting Plans. It’s also sometimes called “first right of refusal” (as if the child was a house being sold) and I admit I often abbreviate it as “FROR”. The provision usually looks something like this:
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.
The number of hours that trigger the FROR can vary – I’ve seen periods as short as 2-4 hours, and longer periods of time like overnights.
The clause is deceptively innocent. If the parent who is assigned parenting time with the child has to be away from him for a given number of hours (say, 6 hours), the other parent should always be the first choice of caretaker before some stranger steps in, right?
Even in 2021, the FROR clause continues to stymie some parenting relationships. In a recent (early 2021) Wisconsin court decision, Hanson v. Beach, a court again had to address allegations of contempt when a father allowed his new partner to pick up the children for him on school days and sometimes do after-school care for the children when he wasn’t available. There was even an allegation of a violation when Father allowed his oldest child to care for the younger children without calling Mother first.
Upon review, the Wisconsin Court of Appeals determined that having someone transport the children for Father was not a violation of the FROR provision. (Thank goodness) But Father was found in violation for having either his new partner or his older child take care of the younger ones until he returned home from work.
This finding was only possible because of the parties’ specific Plan language which REQUIRED Father to offer the children to Mother before any other caretaker was used. This included his new live-in partner (they didn’t appear to be married, but this provision would have applied to a stepparent) and included the children’s own older sibling, in Father’s absence. The result seems absurd. By agreeing to the FROR provision, each parent gave up the right to choose his and her own caretakers, after-school providers, nannies, or short-term babysitters during his and her own parenting time, unless the other parent turned down the chance to care for the children.
The situation to enforce FROR often comes up in stepparent situations, where one parent seeks to prevent a stepparent from having any alone-time with a child. I doubt it can be argued that there is anything inherently wrong with a stepparent, by definition. Obviously if a stepparent has a criminal record or history of wrongdoing involving children, that’s a problem (and Arizona statutes cover notification requirements if certain types of criminals may “have access to” a child). But it generally can’t be argued that a parent’s personal decision to leave a child for a short period with a stepparent is bad for the child.
The benefits of a child being cared for by someone other than the other parent, for short periods of time, include:
- The child may be able to stay in the custodial parent’s home and won’t require transportation, pick-ups and deliveries;
- The child can develop relationships with extended family, including grandparents, stepparents, aunts and uncles and cousins, through extended stays or sleepovers;
- The child can develop social relationships through extended stays or overnights with friends;
- The child develops social relationships and makes friends by attending formal day care or after-school care with others;
- The child can rely on the schedule and routine of being in one parent’s house on certain days, without experiencing back-and-forth or possibly confusing schedules;
- The parents don’t have to resolve sometimes complicated issues of who must provide transportation each way for the child;
- If a parent’s night out ends after the child’s bedtime, the child (left at home with a 3rd party caretaker) can go to sleep in his own bed; and
- The parent who has custodial time can ask the paid care provider to do other things at the parent’s home, like housework, preparation of meals, and homework help.
The FROR clause started out with the best of intentions, I’m sure. It was then misused to the extent it became a means to fight with the other parent rather than a simple statement of the worthiness of both parents. The best part is – even without this clause in a Parenting Plan, each parent can CHOOSE to call the other parent when child care is required, and ask if the other parent wants to care for the children, before someone else is asked. Agreement is always possible. It’s the forcing of the issue that has caused the problems I’ve seen, and that caused the Hanson and Beach parents to end up in Wisconsin’s court of appeals.