If you and your spouse are legally separating, you’ll want to plan well for how each of you should take care of your children after the separation. One of the most important documents in divorce and child custody is the parenting plan, which you and your spouse should agree on. In this plan, you can include the provision for the Right Of First Refusal. What is this right and how does it affect child custody in Colorado?
Right Of First Refusal: A Basic Definition
The right of first refusal means that if a parent is unavailable to care for the kids during his or her parenting time, he or she must ask the other parent before anyone else to watch the kids. So, for example, the mother has to go on a work trip while the children are in her care. She must contact the father first and offer him the chance to look after the children. Only if the dad refuses can the mom call someone else, such as a babysitter or a relative.
What To Consider In The Right Of First Refusal
Even though this right sounds straightforward, you and your spouse should consider some specifics if you are including this provision in your parenting plan.
Planned Or Unplanned Situations
There are situations when parental responsibilities can be planned or rearranged in advance. Perhaps a parent is expected to travel two weeks from now, or a child has a doctor’s appointment when one parent is unavailable to take her. In such situations, it’s fairly easy for the two parents to agree on who watches the kids.
On the other hand, there are also times when last-minute arrangements must be made, such as if one parent is called to an emergency or has to go to an urgent meeting during parenting time.
You and your spouse should agree on the types of situations when the right of first refusal applies. Typically, couples agree that this right applies to both planned and unplanned situations.
Length Of Time Before The Right Kicks In
When exactly does the right of first refusal start? Parents can usually agree that when one of them has to be away at least overnight, the other parent then has the right of first refusal. But let’s say the dad is supposed to pick up the kids from school but is suddenly unavailable for an hour or so. Is an hour of unavailability enough for the mom to have the right of first refusal? Or can the dad reasonably entrust the kids to a teacher or school administrator while they wait for him to arrive?
This is actually a potential area for disputes, so it’s important that you and your spouse agree on when the right kicks in. It may be a good idea to allow some flexibility for little disruptions like in the example above. Many parents decide that the right of first refusal starts only when one parent is unavailable for five hours or more.
Time With Other Family And Friends
Every now and then, a parent might decide that a child can be under someone else’s supervision. Perhaps the young one can spend time at a grandparent’s house or be allowed to go on a sleepover at a friend’s home. Or, if a parent now lives with a new partner, it’s reasonable to assume that the new partner can care for the child when the parent is not around.
While the other parent might see this as an infringement of his or her right of first refusal, there has actually been a case in Colorado that shows otherwise. In re: Marriage of DePalma, the divorced dad was deployed in Iraq during his allotted parenting time. He wanted to have his new wife take care of his child during this time, but the child’s mother thought that this infringed on her right of first refusal.
The court ultimately decided in favor of the father. Since it was his parenting time – his time to decide what’s best for the child – and since there was nothing inappropriate with the child spending time with the stepmom, it could be said that this decision was in the child’s best interests.
Your child’s time with relatives, friends, and possibly stepparents is something you and your spouse should anticipate when it comes to the right of first refusal.
Disputes Around The Right Of First Refusal
As you can see, there are many specific circumstances that can affect a parent’s right of first refusal. Indeed, this right has been at the center of many disputes between divorced parents. Some argue for their right just for its own sake, like in the DePalma case above. Some find loopholes in the parenting plan and assert their right out of jealousy or wanting to take control.
You may be discouraged from including this right in your parenting plan altogether. But with comprehensive and thoughtful planning with your spouse, this provision can actually work well for both of you and for your kids. As always, the key is respect for each parent’s allotted parenting time, whether or not this right is expressly included in the parenting plan.
If you’re still unsure about the right of first refusal and whether to include this as a custody provision, it’s wise to consult a family law attorney for case-specific guidance.