Right of First Refusal Custody

Anytime a couple goes through a divorce and they share children, the more provisions the final order contains, the less likely there will be any major disputes down the line. One provision that is often included to avoid confrontation is the first right of refusal custody (FRORC).

Basically, this provision means that whenever one parent is unable to care for the child and needs a third party to watch them, the other parent must be asked first. So, if a parent must leave at the last minute on a business trip during their period of possession, then instead of calling a babysitter, they must approach the other parent and offer them the opportunity to care for the child during their absence. It is best practice to set a limit on the amount of time the parent must be away before instituting the first right of refusal custody. Usually, this period is between 5-8 hours or more. Anything less would mean that a parent would be charged with contacting the other parent for every little errand they have to run, even if it’s for a short amount of time. This is impractical and too unpredictable to be a workable solution – especially for high-conflict cases.

This arrangement is beneficial for multiple reasons. The child gets to spend more time with the other parent instead of a third party. It will save money, too. Childcare can be expensive, so allowing the other parent to share the responsibility will reduce costs for both parties. And, there is no obligation on the other party to take possession of the child during this time. So, if they have already made plans, then the party who cannot care for the child during his or her regularly scheduled times will then need to arrange a babysitter or friend to watch the child. Of course, provisions concerning the first right of refusal will be more effective if parents can communicate appropriately and in a timely manner to minimize friction or conflict.

In the event you and your ex-partner decide to employ (FRORC), then it is recommended that each parent shares a calendar concerning their children, events and potential times when the right of refusal will kick in. This allows the parties to monitor each other’s schedule as it concerns their children and head off any disagreements down the line. Another benefit to this arrangement is, if the other parent does not comply with the provisions concerning first right of refusal custody, then they are in contempt of the custody order. You may then file a complaint with the court if you believe the other party has violated the order.

Even though it seems like this arrangement is beneficial to all parties, the court will not automatically grant it, particularly if it doesn’t appear that the child’s best interests will be served. For example, in Ferrer v. Durkin, the court determined that (FRORC) would not work for the family. The couple had two children within fifteen years of marriage. Upon divorce, the parents agree to an equal split of shared parenting time, but could not come to an agreement as to a vacation schedule, and the wife refused to agree to (FRORC) . When she was unable to care for the kids, she had her parents or her husband’s sister watch them. Joseph had a far more relaxed work schedule, and as such, he hardly ever needed anyone else's assistance during his parenting time. He did admit that, during the marriage, the children were sent to day-care despite this, partially for the benefit of the children becoming more socialized.

Throughout the end of the marriage, the relationship between the parties was bitter and acrimonious. They had each filed domestic violence complaints against the other, and the parents did not speak to each other, despite being found to be good parents. They could not agree on even minor scheduling problems, largely due to the husband's intractability (according to the judge's opinion). Crucially, the judge also did not find any support in the case law for the father's argument that he had priority over his in-laws and sister for watching the children by being their biological father. Ultimately, the judge determined that because the parents were unable to communicate or cooperate about the children, then this was not in the best interest of the children, and thus, it took precedence over his requested relief for first right of refusal. On appeal, the court determined that the trial judge’s factual findings could not be disturbed on appeal unless that these conclusions were so inconsistent with relevant and credible evidence that it was not in the interest of justice. By incorporating the first right of refusal custody into a parenting schedule, the parties must have a strong sense of cooperation and respect for the other – something that was entirely absent within this case. Ordering this right, over one parent's objections, would do nothing to improve the situation. In fact, it would probably harm an already very negative relationship even more, to the detriment of the children. The appellate court agreed with the trial court's decision and affirmed.

These provisions will not be practical for every family. If the parents have a relationship like this case, that is something to consider. Additionally, if the parties live a considerable distance from each other, then this right is more difficult and impractical to enforce, especially if it takes more than a few minutes to get to the other house. In the clear majority of cases, however, if a party requests this right, then the courts will accept it if they believe it is in the best interest of the child.

If you have questions about child custody and other provisions in a divorce decree, get in touch with the law offices of Peter Van Aulen today, for a free initial consultation, at 201-845-7400.

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