By: Curtis Wiberg
One provision many parents use when formulating a parenting plan is what is commonly known as a “Right of First Refusal.” Essentially what this provision requires of each parent is that when one parent is unable to exercise the parenting time that they have been awarded, that parent must contact the other parent to give the other parent the option of spending that time with the kids before the parent that is unable to exercise his or her parenting time can be allowed to make other arrangements for the care of the children (e.g.: relatives, babysitters, etc.).
Typically, the parties agree to have the provision apply for overnight parenting time. So, as an example, Mom gets called away on a business trip at the last minute that will keep her from watching her kids on the Monday and Tuesday overnight that week. With a right of first refusal provision, Mom would be required to contact Dad and ask him if he wanted those overnights. Only if Dad declines can Mom then contact a different caregiver to watch the children while she is away. Though right of first refusal provisions are certainly still enforceable, subsequent to a 2007 Court of Appeals decision, it became much less common place for a court to order them absent an agreement between the parents.
I generally discourage the inclusion of a Right of First Refusal provision in negotiated parenting plans, as I feel they become a breeding ground for later conflict, hurt feelings, contempt allegations, and attempts at control. However, parents who are able to put their hurt feelings aside for the sake of the children and are able to work amicably can make a Right of First Refusal provision a successful tool for their children. If a client and an opposing party desire to include a Right of First Refusal provision in their parenting plan, it is important to identify potential problem areas ahead of time and ensure that both parents are on the same page when certain situations arise in the future.
The number one source of conflict in a Right of First Refusal situation is what happens when a parent starts a new relationship with a significant other. In the example described above where Mom is called away on a business trip for a couple of overnights, except now, her new husband stays home, can manage the daily routine, get the kids to and from school, etc. In that instance, is Mom required to call Dad under a right of first refusal provision? What if, in this hypothetical, we are not talking about Mom’s new husband, but instead Mom’s new boyfriend of a few months? An agreement, reduced to writing, on how to balance a Right of First Refusal against a parent’s new relationships is a must for parents who are desirous of including a right of first refusal into their parenting plan agreements.
Again, Rights of First Refusal has been litigated on appeal in Colorado, with the Court agreeing that extended care by an appropriate step-parent care of a child did not trigger the Right of First Refusal provision. See, In re: Marriage of DePalma, 176 P.3d 829 (Colo. App. 2007). In DePalma, a Father who was actually deployed in Iraq for an extended period of time, sought to have his new wife care for his child while he was away during his allotted parenting time (and even expand it as part of a Motion to Modify Parenting Time under C.R.S. 14-10-129). The Court approved the trial court’s general finding that a fit and proper parent is presumed to make decisions appropriate for the care of their children, including who should help care for them. The Court specifically noted that “Because the dispute concerned father’s parenting time and father’s determination that it would be in the best interests of the children to allow them to maintain their relationship with their stepmother and stepbrother by maintaining the usual parenting time schedule during his deployment, we conclude that the court did not err by considering first the presumption that father was acting in the best interests of the children, and determining that the issue of stepmother’s care of the children was resolved when that presumption was not rebutted by mother.” Id. at 833. It’s important to note here that there was no allegation by the Mother that Step-Mother was inappropriate with the children, just that her extended care while Father was deployed infringed on her rights as the natural mother and under the Right of First Refusal. Again, the Court disagreed with her.
Another problem with Right of First Refusal is the time trigger for when the Right of First Refusal kicks in. In my experience, any period of time that does not involve at least one overnight becomes problematic. Some parents believe that if one parent is unable to pick up kids from school, for example, that they should have the right of first refusal to care for the kids until the other parent is available. Maybe, in some cases, that would work. However, when a period of just hours is involved, the contact between the divorcing parents is increased, disputes as to subsequent parenting exchanges later in the day arise, etc. Oftentimes, the parent insisting on such a brief trigger has issues of control and jealousy (and possibly a history of domestic abuse), and attempt to wield the Right of First Refusal as a tool of harassment. When dealing with something involving a period of hours, instead of overnights, in my experience, it is better to let each parent settle into their own routines and provide for their own time-to-time disruptions. Just because there is not a Right of First Refusal, or one that isn’t triggered by a mere hours inability to exercise parenting time does not keep a parent from reaching out to their ex for a little help.
One final issue that needs to be included in a Right of First Refusal provision is an understanding of a child’s need to have a sleep-over at a friend’s house, or spend a weekend with cousins or grandparents. It is important for parents to ensure that a parent exercising parenting time is not precluded from allowing their children the experience of developing relationships with friends and extended family.
If you are going through a divorce and have questions about your parenting plan and whether a Right of First Refusal provision in your plan is right for your family, contact a Denver family law lawyers to assess your case and options.