BLANK

Tag: right of first refusal

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

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

Tags: , , , , , , , , , , , ,

Second and Third Judicial District Court COVID-19 Guidelines as of April 6, 2020

Second and Third Judicial District Court COVID-19 Guidelines as of April 6, 2020:

Second District

NOTICE REGARDING DOMESTIC CASES AND COVID-19

As commissioners in the Second District Court, we anticipate that many attorneys and parties may have questions about whether court orders will be interpreted differently to accommodate for the disruption caused by the current pandemic. We have met and discussed possible scenarios, and while there are some situations that will require handling on a case-by-case basis, we would like to offer the following guidelines for your assistance. As always, the word “child” is to be interpreted in the singular or plural as dictated by each case.

REGULAR PARENT-TIME: There should be no deviation from the normal parent-time schedule unless the child or someone in the child’s home has tested positive for COVID-19.  If that is the case, the custodial parent must provide documentation of the positive COVID-19 test to the non-custodial parent within 24 hours.  Following provision of the positive test, parent-time will be suspended for a period of two weeks. During the period of suspended parent-time, the noncustodial parent shall have at least 30 minutes of virtual parent-time (Google Hangouts, Skype, Facetime, etc.) each day.  The missed parent time will be made up during summer break or at another time agreed upon by both parties.

SPRING BREAK: Pursuant to U.C.A. § 30-3-35(f) and (h), spring break is the custodial parent’s holiday in 2020. The parties will follow the child(ren)’s normal school schedule for the purpose of determining when spring break occurs. Unless there is a positive test (see above) or a travel restriction, spring break will be treated as it would be under non-pandemic conditions.

Similarly, under U.C.A. § 30-3-37(6), spring break is the custodial parent’s holiday this year. If the order does require the child to travel for spring break and that travel is prohibited, the non-custodial parent will be entitled to an equal period of make-up time. This make-up time will be as the parties may agree, but otherwise would be added to the non-custodial parent’s summer time or permit the non-custodial parent to take spring break in 2021, at the non-custodial parent’s election.

RIGHT OF FIRST REFUSAL: The parties will follow their orders regarding the right of first refusal. The fact that the child may not be attending school does not affect this order.

For situations that may not be specifically addressed above, we hope and expect parents to be reasonable and try to work together to follow government guidelines and ensure the safety of their child and others.

This is a time when emotions are running high, and everyone is trying to make the best decisions possible to protect themselves and their families. Parents are strongly advised not to take advantage of the situation and engage in gamesmanship with each other. Children are afraid of the virus as well, and they need the reassurance of frequent, meaningful contact with both parents if at all possible without endangering anyone’s health.

Sincerely,

Commissioner Catherine S. Conklin
Commissioner T.R. Morgan
Commissioner Christina L. Wilson

Third District

THIRD DISTRICT COURT COMMISSIONERS’ NOTICE REGARDING DOMESTIC CASES AND COVID-19

As commissioners in the Third District Court, many attorneys and parties have questions about whether court orders will be interpreted differently to accommodate the disruption caused by the current COVID-19 pandemic. We have met and discussed possible scenarios, and while there are some situations that will require handling on a case-by-case basis, the following guidelines should govern in the absence of contravening directives of doctors and disease control experts.

  1. REGULAR PARENT-TIME: There should be no deviation from the normal parent-time schedule unless the child or someone in the child’s home has tested positive for COVID-19. If that is the case, the primary custodial parent should provide documentation of the positive COVID-19 to the noncustodial parent within 24 hours. If positive, parent-time with the noncustodial parent should be suspended for a period of two weeks. During the period of suspended parent-time, the noncustodial parent shall have at least 30 minutes of virtual parent-time (Google Hangouts, Skype, Facetime, etc.) each day. The missed parent-time will be made up during the summer break, or at other times agreed upon by both parents. If a child remains positive after conclusion of the two week period, this provision should be extended until the child is no longer positive.
  2. SPRING BREAK: Pursuant to Utah Code 30-3-35(f) and (h) the spring break is the custodial parent’s holiday in 2020. The parties will follow the child(ren)’s normal school schedule for the purpose of determining when spring break occurs. Unless there is a positive test (see above) or a travel restriction, spring break should be treated as it would under non-pandemic conditions.

Similarly, Under Utah Code 30-3-37(6) spring break is the custodial parent’s holiday in 2020. If the order requires the child to travel for spring break and that travel is prohibited, a parent losing parent-time due to the travel prohibition should be entitled to an equal period of make-up time.

  1. RIGHT OF FIRST REFUSAL: If the governing order allows for the right of first refusal to provide child care, the fact that a child may not be attending school does not affect the order.
  2. SCHOOL CLOSURES: COVID-19 school closures will not be treated as snow days, teacher development days, or other days when school is not scheduled and which are contiguous to the weekend or holiday period under Utah Code 30-3-35 (b)(iv) and (c). Thus, until the conclusion of the academic year, children should be returned to the other parent at the time the children normally would be delivered to school or the other parent.
  3. MISCELLANEOUS: For situations not specifically addressed above, we hope and expect that parents will be reasonable and will try to work together and follow government guidelines to ensure the health and safety of their children, themselves and others. Should parents attempt to take improper advantage of the court’s present inability to hear many matters, this could eventually result in the imposition of appropriate sanctions when full court operations resume.
Tags: , , , , , , , , , ,

How does the “right of first refusal” to provide child care work?

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
Tags: , , , ,
Click to listen highlighted text!