QUESTION: I have a question about what is often called “the right of first refusal” to provide care for a child when the other parent who would otherwise be scheduled to have care and custody is unavailable due to work or some other scheduling conflict. A common provision in a divorce decree looks like this:
Right of first refusal to provide care. If a party who would otherwise have the minor child in his/her care and custody is unavailable to provide personal care and supervision for the minor child for a period of ____ (___) hours* or longer, the other parent has the right of first refusal to provide personal care and supervision.
So when exercising this right of first refusal, do I have to be able to provide care for the children for the entirety of the time specified? For example, my ex is unavailable some days from 8:00 a.m. to 8:00 p.m., and I am available to provide care for the kids from 8:00 a.m. to 4:00 p.m. Would it be my responsibility to find childcare for the last 4 hours? Or would I even get them at all since I can’t provide care the full 12 hours?
ANSWER: This is a great question. The answers are, in my opinion:
A) that as long as you notify your ex in advance that you intend to exercise the right of first refusal to provide care and include in the notice the fact that you cannot provide care for the entire time your ex is unavailable,
B) then you get to take the child during the time that the other parent is not available for as long as you can. If, after that point, the other parent is still not available and you aren’t either, then:
C) it would be up to you to get the child to the daycare provider that you and your ex may use when either of you or both of you aren’t available to provide personal care for the children,
D) and if you don’t have a regular day care provider like that, it would be up to you to find a babysitter to take care of the child in your absence until you can bring the child back to the other parent during that parents regularly scheduled custody or parent time period. If your ex is unavailable to provide personal care and supervision due to work, then you and your ex would be equally responsible for the costs of the surrogate care provider, if you’re using a paid care provider. If your ex is unavailable to provide personal care and supervision for a reason other than work, then I’m not sure it would be fair for you to be responsible for the costs of that babysitter/childcare provider when, in your absence, your ex would have been responsible for that.
*usually a period of 3-4 hours, but it can be any reasonable length of time.
Utah Family Law, LC | divorceutah.com | 801-466-9277