What is the “right of first refusal”? Is it a statutory right in Utah?

Many of you dealing with child custody disputes may have heard the time “right of first refusal” in the context of child care.

This “right of first refusal” or “first right of refusal” is shorthand for a provision that goes into many child custody and parent-time orders.

What it means is that if a parent is unable to provide personal care and supervision for the children when they are scheduled to be with that parent, then the other parent has the “first right” to pick up the children and provide that care for the children, instead of having a babysitter, daycare provider, or other surrogate care provider take care of the children, until the parent with whom the children are scheduled to stay can again provide personal care and supervision.

The principle behind the right of first refusal is that the parents, not surrogate, should be providing as much care for their own children as possible. A good example of this would be when a parent who is scheduled to have the children for particular week or weekend has to go into work to deal with an emergency or out of town for a business trip.

A lot of mean-spirited and malicious parents get very territorial with their custody time and want to limit the amount of time the other parent has with the kids to the bare minimum. In response to this problem, the right of first refusal clause was invented. It requires 1) a parent who is going to be away from the children to notify the other parent that he or she will be away from the children for certain period of time and 2) that the other parent may provide care for the children before the parent can leave the children with a babysitter, in daycare, with a grandparent or neighbor, or any other surrogate provider.

The right of first refusal clause does not provide that you have to notify the other parent if you’re going to be away from the children for half-hour trip to the grocery store.

In situations like that, it wouldn’t make sense to notify the other parent of the right of first refusal and then have that parent drive 15 to 20 minutes or more to the other parent’s house to pick up the kids, and then have the shopping trip over with before the other parent even gets the kids to his/her home. If the children are young enough to be left at home alone for half an hour, a parent is allowed to do so without the right of first refusal applying. If the children are too young to be left at home alone for half an hour, the right of first refusal also does not apply, and instead a parent can have a neighbor or babysitter watch the children for that brief period that he or she is away from home.

And so the right of first refusal clause usually provides that you only have to notify the other parent if you know that you will be away from the children for a period of more than three or four hours. So if you’re going to be an important work meeting half a day or all day, the right of first refusal kicks in if you have to be out of town for several days due to work or a funeral or something like that, then the right of first refusal kicks in.

Some people believe, falsely, that the Utah Code has made this right of first refusal “statutory right,” a legal right. It has not.

Here is what the Utah Code actually provides:

Utah Code §30-3-33:

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

That’s it. This creates no rights. These are guidelines, not legal mandates.

So unless you get the court to order a right of first refusal to take care of the kids in the other parent’s extended absence, you don’t have that right, period.

So if you want the right of first refusal, then you need the court to include such a clause in your child custody and parent-time order.

Some people suggest that the right of first refusal should be made a legal mandate, a statutory right. I’m not so sure.

In my opinion there is no need for there to be a law that provides for an absolute, irrevocable right of first refusal to provide care in the absence of the other parent. Some parents live too far away from each other to make that possible. Other parents have job schedules that make that impossible for them to exercise. It’s a great idea for most couples (if they can set aside their hatred for each other and agree that parental care is better for the kids than surrogate care), which is why that is something that individual parents and their attorneys should come up with on their own and then have the judge include the order. The problem with the Utah Code currently is that it has to many provisions already, not too few, when it comes to child custody and parent time issues.

I would have no problem with a provision in the Utah Code that a right of first refusal should not be denied if it is requested and the requesting parent can show by a preponderance of the evidence that he or she can make it work consistently and in the best interest of the children, or something like that. Because you and I both know that there are plenty of parents out there who object to the right of first refusal not because it’s a bad idea because they want to alienate the children from the other parent by denying them contact however they might.

It has been my experience that if the parents live close enough together and have work schedules that make it possible for them to provide care for the children when one of the parents would otherwise be scheduled to have the children in his/her custody is unavailable, courts will gladly and wisely include provisions for a right of first refusal.

Utah Family Law, LC | divorceutah.com | 801-466-9277