An Odd Place to Find "Rights of First Refusal":

It turns out there are at least a couple of dozen cases, from many jurisdictions, that talk about a noncustodial parent's "right of first refusal to babysit the children."

This makes perfect sense -- I assume it means that when the custodial parent wants to leave the children with a babysitter, the noncustodial parent should get to be that babysitter if he or she so wants, much like a right of first refusal operates in commercial contracts. But it just sounds a bit odd, given how commercial "rights of first refusal" usually are. I take it that when two parents can't stand to be near each other, and drop the children off at a third party, we'll be hearing about how the children are "in escrow."

TomHynes (mail):
To continue the commercial analogy, the non custodial parent should get paid the same as the babysitter.
10.14.2008 8:21pm
Sounds like the making of a Halloween costume. How do you dress a kid up as pork bellies? Maybe frozen, concentrated orange juice would be easier?
10.14.2008 8:38pm
J.McFaul (mail) (www):
"we'll be hearing about how the children are "in escrow."

Too late,
it's essentially already happening
10.14.2008 9:56pm
Crunchy Frog:
It's really a bitch when they fail the asbestos inspection.
10.14.2008 11:48pm
Roger Schlafly (www):
It sounds ridiculous, but somethings the custodial parent actually profits by using a babysitter instead of the noncustodial parent. She can sometimes get reimbursed for the babysitter fees as well as get extra child support. I have seen this happen. So often the father goes to court to try to get that right of first refusal.
10.15.2008 1:35am
Does this mean that a custodial parent is obligated to notify the non-custodial parent that there is a babysitting opportunity in order to allow the non-custodial parent the opportunity to exercise said right of first refusal?

I just don't know how it is enforceable to require that the custodial parent do such a thing?
10.15.2008 1:56am

It sounds ridiculous, but somethings the custodial parent actually profits by using a babysitter instead of the noncustodial parent. She can sometimes get reimbursed for the babysitter fees as well as get extra child support.

Respite programs can have that result. And, the programs I am familar with do not require that the person "paid" to provide respite services be unrelated to the parent/guardian and child(ren) qualifying for respite payments.

Although I am unaware of any cases in which the respite provider was the non-custodial parent, I haven't seen anything preventing that. So, in theory, the non-custodial parent could be paid for providing respite services by the custodial parent, and the custodial parent could then receive reimbursement. (This would assume that the former spouses or unmarried lovers could get along long enough to do something mutually beneficial -- which usually isn't true).
10.15.2008 11:27am
Roger Schlafly (www):
The more common situation is that the kid is in day care while the mom works, and the dad only gets to see the kid for a couple of weekends a month. The dad then wants to see the kid during some of that day care time. Notification is usually not a big problem because the parents have regular schedules.

Why is enforcement a problem? If the mom has to call a babysitter, she can just call the dad first.
10.15.2008 11:31am
r.friedman (mail):
Not to mention quiet title actions.
10.15.2008 11:32am
New World Dan (www):
I usually get an earfull when I fail to give grandma the right of first refusal on babysitting.

On the otherhand, the neighbor's teenage daughter cleans the house when we go out, so it's a value added service. How would hybrid services like that fit in? Let the ex babysit on condition that he/she do the dishes and vaccuum?
10.15.2008 5:32pm
R Gould-Saltman (mail):
I've seen these a bunch in 20+ years of family law practice; the concept is meaningful and intelligible, particularly if one or both parents have jobs which require some extensive traveling. If what's at stake is "park Junior with me if you're out of town for three days, before you park him with your Mom (my ex mother-in-law) or a friend's parent, or something", it makes a certain amount of sense, although like many parts of custody agreements, it's reducing to a written agreement and court order things which folks who AREN't in the middle of a collapsing marriage might do as a matter of courtesy.

Where we run into problems with these, and they ARE problematic, is the failure to set a bottom limit of what constitutes an "opportunity". Does leaving your kid with a friend, and the friend's parents, up the street, while you go for 10 minutes to pick up something at the store, require a call to the other parent first? Leaving kid at camp or at after-school day care, for ten minutes after usual "last pick up", for which the camp or day-care charges a late fee?

I've actually been called upon to clean up "right of first refusal" orders in custody cases several times when just this sort of issue arose.
10.15.2008 5:55pm

"in 20+ years of family law practice"

Either a Saint or insane.
10.15.2008 6:30pm
R Gould-Saltman (mail):
. . . or both
10.15.2008 7:16pm