What is a Child Care Right of First Refusal?

A “Child Care Right of First Refusal” refers to language in a parenting time order which requires a parent to permit the other parent the opportunity to care for a child whenever the child would otherwise be in childcare. This is a fairly common provision, although the precise details vary from case to case. A couple of things to decide when working out a child care right of first refusal provision are: a) what amount of time triggers the clause? (e.g., 3 hours, 6 hours, 8 hours, 12 hours, overnight?); and b) are there any exceptions? (for example, sometimes parties will agree that childcare by a grandparent or stepparent does not trigger the right of first refusal). Here is some language I often use:

“Before either parent leaves the child in the care of a third party overnight (or “for more than X number of hours”), he shall afford the other parent the opportunity to care for the child during the time that the child would otherwise be in the care of a third party. Notice of the need for childcare shall be provided as soon as the need becomes known. A parent receiving such notice shall accept or decline within 24 hours.”

There are a few judges and custody evaluators who do not favor these clauses, but in my experience, they are generally favored by judges and by parents, given the general consensus that childcare provided by a parent is better than childcare provided by a third party.