Friday, November 23, 2007

Parenting time - Right of First Refusal

A question came up about the following Parenting Time Guideline:

3. Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a person other than a parent or a family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost.
You can find all of the rule here: Changes In Scheduled Parenting Time. The questioner wondered about the phrase "or a family member." And if there is any case law on the issue. No, there is no case law on this point.

Interpreting The Parenting Time Guidelines requires looking at the plain language and the Commentaries. The Commentary to this provision is as follows:

The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a child care provider. It is also intended to be practical. When a parent’s work schedule or other regular recurring activities require hiring a child care provider, the other parent should be given the opportunity to provide the care. Distance, transportation or time may make the rule impractical. Parents should agree on the amount of child care time and the circumstances that require the offer be made.

The Commentary lacks a clear, positive definition of family member other than that person cannot be a "child care provider." That appears to be someone who gets paid for taking care of one's child. At least, that is my interpretation. The Child Support Guidelines makes a better attempt at defining child care:
It includes the separate cost of a sitter, day care, or like care of a child or children while the parent works or actively seeks employment.
See Child Support Guideline 3.E.1.

I find more of a problem existing between the Rule and the Commentary about when the right of first refusal comes into play. The Commentary says "[w]hen a parent’s work schedule or other regular recurring activities require hiring a child care provider....but the Rule makes no distinction between an irregular need for child care and a regular, recurring need.

I find the other difference between Rule and Commentary a bit harder to describe succinctly. At its simplest, the Rule makes mandatory to what the Commentary gives a less strict interpretation. The Rule uses "shall"
(...the parent needing the child care shall first offer the other parent...) to describe what the Commentary makes optional (...the other parent should be given the opportunity to provide the care...).

I see the Rule's requirement and the Commentary's impracticality exception creating the grounds for a contempt citation. In fact, I have a similar case pending. We will have to see how it turns out.

3/7/2010: There is a correction and an update to this post at Following Up on ""Parenting time - Right of First Refusal".


Anonymous said...

There is a case that applied the term "family member" to mean "a person within the same household as the parent with physical custody" Shelton v. Shelton 835 N.E. 2d 513, 517

Anonymous said...

I notice that you only mention when the custodial parent is not available the right of first refusal must be given to the non-custodial parent. What about the custodial parent? Is the right of first refusal extended to the custodial parent as well? I am dealing with this situation right now. I am the custodial parent. My children are constantly being left with their 24 year old stepmother (three of my children are teenagers and the other two are elementary school age) while their father must work during his visitation time. I believe that I should have the right to care for my children while their fatehr is at work. This is not just a few hours ... it is from early afternoon until 2:00 in the morning. During the summer vacation visitation which lasts 5 weeks or more ... the kids are basically spending the BULK of their vacation with NEITHER parent. They don't like that and neither do I. I have spoken with their father about this. He says that he wants the kids to spend that time with their new stepmother so that they can get to know her. But I maintain that the guidelines make it very clear that the opinion of the court is that it is best for the children to spend their time with one parent of the other ... which is why the right of first refusal was included in the guidelines in the first place. In the Indiana Parenting Guidelines section 1(3) C of the guidelines I believe that it is pretty clear that the right of first refusal extends both ways and that a FAMILY member is considered to be an adult who LIVES WITHIN the custodial home WITH the children. Am I missing something?

Sam Hasler said...

I need to update this post as there is case law now on point. Without step-mother, you would be correct.

Anonymous said...

Shelton v. Shelton does state that a family member can be one who is residing in the same household. However, mom or dad always trumps that person. Always.

Sam Hasler said...

Well, Anonymous, the Indiana Court of Appeals says that you wrong about how trumps whom. See my Following Up on ""Parenting time - Right of First Refusal" at Thanks for giving me the impetus to better tie together the posts.