RIGHT OF FIRST REFUSAL ON CHILD CARE IN CUSTODY CASES

RIGHT OF FIRST REFUSAL ON CHILD CARE

Settlement Negotiation in Family Court Custody Cases

 

By M. J. Goodwin

 

While there are many good reasons to settle a Family Court matter, saving money and reducing grief being among them, it is important to carefully consider the consequence of the individual settlement terms.

Custody cases are among the most problematic for settlement. Custody by its very nature speaks to control of a child. It requires ongoing, long term dealings between the parties. There is already a bad, broken relationship between the parents. To add a lot of rules to the mix may help, or it may not. It is here that careful consideration is required.

Lawyers routinely add “Restrictions on Parental Conduct” or “Judge Brown’s Restraining Orders” to their custody agreements. These are essentially orders that require the parents to act appropriately around the child, restrain drug use, immorality and other bad behavior and may include other provisions, such as the right of first refusal on child care. That one can be tricky. The right of first refusal on child care means that a parent can require the other parent to allow him/her to be the babysitter if the parent is not present and able to care for the child. Overzealous new parents often demand this provision. Spurned spouses often demand this provision.

There are two ways to look at the provision. One is that both parties believe that it is best for a child to be with a parent over anyone else. If that is the case, both parties will likely have little difficulty with the provision.  In fact, they probably don’t need the provision to be ordered at all.  However, I find that the demand is not typically made to insure the child is not sent to daycare. Rather, the demand is made to exercise control in the other parent’s interaction with the child.

Restrictions like this one are typically applied equally to both the custodial parent and the visiting parent.  Like many regulations and rules, it sounds good on the surface, but when put into practice, causes problems.

There is an underlying current of distrust in the demand. It puts forth the assumption that the other parent either cannot or will not provide suitable supervision for the child. I see this a lot when a custodial parent doesn’t like a visiting parent’s new spouse. What is often over looked is that this much more burdensome to the custodial parent than to the visiting parent. So the custodial parent gets what she wants, which, for example, is that the new step-mother can’t keep her child. But, the custodial parent overlooks that long term, she is also bound by this restriction. So when the custodial parent remarries in, for example, three years, her spouse cannot “babysit” the child. She may be surprised when the visiting parent brings to this to her attention after she leaves the child with her new husband to go to a movie with girlfriends. It is important to think beyond the hurt of the moment in reaching a final resolution in Family Court matters.

Custody cases require lawyers. You can reach me at: mj@mjgoodwin.com

M. J. Goodwin is a divorce lawyer and custody lawyer in Anderson, SC.

 

**NOTE:  For a blog on this same topic by Charleston Divorce Lawyer Gregory Forman, click here:  http://www.gregoryforman.com/blog/2011/01/the-folly-of-a-court-ordered-%E2%80%9Cright-of-first-refusal%E2%80%9D/

 

 

 

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