Introduction
Child custody is a major cause of contention among separated parents. When the parents of a child do not live together, then an agreement regarding parenting time and decision-making abilities must be made. These decisions can either be made by the parents or through the courts.
The easiest process to determine parenting time and legal decision-making rights is through the parents simply coming to an agreement. This can be done between the two parents or with a divorce mediator. If the parties are able to reach an agreement, the agreement must be typed, signed, and filed with the court. The courts will then accept the agreement and any terms outlined in the agreement become legally enforceable.
If the parties are unable to reach an agreement on their own, then they will have to go to court and provide evidence of why their plan is better for the child and the court will make a decision regarding parenting time and decision-making abilities. The major downside of taking a custody battle to court is that the court’s decision is final and legally enforceable. For this reason, it is recommended to consult with an experienced family law attorney about your custody issues to ensure that your wishes are heard.
Parenting Time
In a custody case, parenting time will be determined according to what is in the best interest of the child. In Arizona, the best interest for the child is determined by ARS 25-403. Parenting time can be full custody or shared custody.
Shared custody can come in many forms, be it 50-50 shared time, switch off every week, etc. The court will agree to any parenting plan that allows for the best interest of the child to be met. The court generally prefers to have shared custody as it gives both parents the ability to still be in the child’s life and hopefully provide stability in their life.
With the specific designation of time when each parent has a legal right to their children can obviously lead to potential conflicts. If a parent ever has a conflict in their schedule with when they have the child, the ideal situation would allow the other parent to watch the child during that time.
However, as the child is under that one parent’s custody at that time, the parent with the conflict has the ability to make arrangements for someone else to watch the child during that time. To avoid this inevitable drama, it is recommended to include a first right of refusal clause in your custody agreement.
First Right of Refusal Custody
Once parenting time is determined, parents are legally obligated to adhere to the agreement or court order. While the parenting time is clearly outlined, there is always room for confusion or gray area.
A common gray area is the above-mentioned scenario in which the parent with the child has a conflict during the time they are supposed to be watching their child. At that point the parent generally has the ability to find a babysitter, take the child to the grandparent’s house, or any other means of childcare.
A first right of refusal clause will address this by simply stating that if the parent who has custody of the child has a time conflict during their time with the child, they must first see if the other parent is available to watch the child before they look into other means of childcare.
Implementing the First Right of Refusal in Your Custody Agreement
While it sounds like a perfectly considerate option in a custody agreement to allow the other parent to have the child when you busy, this is not always an easy task to follow. Especially in contentious custody cases, parents do not want to give the other parent any of “their time with the child” even though they will be unavailable.
Remember, if the first right of refusal clause is included in the custody agreement, it is legally enforceable. If a parent does not give the other parent the option to watch the child before they find alternate childcare, they run the risk of losing their parenting time with the child if the court finds out that they did not follow the first right of refusal clause.
A first right of refusal can vary from case to case depending on the agreement the parties sign. The first right of refusal can come into play for any time period in which the parent can’t watch the kids, or if they are unavailable overnight to watch them, etc.
There are many different types of stipulations that can be placed in your first right of refusal clause. Work together with a child custody attorney and the other parent to determine the best scenario for your situation.
Have a Plan for When First Right of Refusal Situations Occur
In order to avoid conflicts, it is important to have a plan in place ahead of time to ensure that the first right of refusal clause is adhered to. In a combative parenting situation, parties are not readily willing to call the other parent to see if they can watch the kid for fear that the other parent will claim that you are unavailable for the child too much. While that accusation is taken seriously, a court will take into consideration the first right of refusal clause and will not likely hold a few instances against you in enough weight to take away to parenting time.
Remember that this is about what is best for the child. Having the child with their other parent is the ideal situation, so take out the stress and contention and keep your child’s best interest in mind. Agreeing ahead of time to have open communication regarding first right of refusal will make it easier to trust that your co-parent will be agreeable when you need them.
A strong recommendation from successful family law attorneys is to have a shared parenting calendar that designates when the child was with which parent. On the calendar you can add your conflicts and then work out the parenting time from there. This keeps solid records of where the child was and ensures they are cared for at all times.
In a perfect world a parent would automatically consider the other parent first to watch their child, but this is not usually the case. It is recommended to have a customized first right of refusal clause inserted into your parenting agreement to ensure your child spends the most amount of time with their actual parents and continue stability in their life.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
