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:
Commentary

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".