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Child Custody and Controlling Childcare Decisions


Dividing parenting time following a divorce or separation requires both parents to give up control when the child is with the other parent. This necessary acquiescence can be hard to extend, especially if there are trust issues. However, in most instances, each parent has authority to make decisions about the child’s daily needs without consultation with the other party. In practical terms, this will likely mean some decisions will be made that do not completely align with the wishes and approach of the other parent. This deviation is just a part of sharing parental responsibilities and cannot be entirely avoided. In order for a parent to have grounds to intervene on routine decisions, the child’s health and/or safety must be at risk. One area that can present this concern is childcare. Each parent will have occasion to need a babysitter or other caregiver to takeover when he/she is unavailable during regularly scheduled parenting time. Generally, each parent is free to decide who has access to the child, including the choice of babysitter, as long as it falls within his/her time with the child. However, problems may arise when the parent frequently needs a babysitter during his/her parenting time, as well as when the person chosen for this responsibility could pose a danger. As a tragic example, a 4-year-old Miami Gardens boy died after suffering severe burns and other injuries, while under the care of his mother’s boyfriend.

Right of First Refusal

The right of first refusal is an optional provision that some parents include in parenting plans to ensure the child is not left with a third party for an extended period of time. Specifically, these clauses require a parent who needs to use childcare during their regularly-scheduled time first ask the other parent if they would like to take the child instead. As noted, this provision is only for extended periods where the parent is unavailable and not for small windows. The other parent does not have to agree to take the child if asked, but repeated failures to do so is likely to result in the first parent not bothering to ask. As mentioned, a right of first refusal is not a standard part of parenting plans in Florida, but is something that can be included if a frequent need for outside childcare is anticipated, or there is a desire to control when the child is under another caregiver.

Issues and Additional Provisions in the Parenting Plan

Before including a right of first refusal clause, each parent needs to assess the feasibility of changing the time-sharing schedule on the fly. Some considerations to keep in mind include:

  • The distance between the parents’ homes;
  • Providing transportation if the right of first refusal is exercised;
  • How much advance notice would be required;
  • How much time a parent would have to decide whether to accept or decline; and
  • Exceptions that would eliminate the need to offer the right of first refusals, e., emergencies, the other parent is known to be unavailable, etc.

In addition to a right of first refusal clause, a parent could demand certain individuals not be permitted around the child. Though, this would likely provoke litigation, but it may be necessary. Discussing a particular situation with an experienced family law attorney is the best way to learn all the available options.

Get Legal Advice

Working out an appropriate parenting plan is something of an art that varies by the needs of each family. The Orlando timesharing and parenting attorneys at the Donna Hung Law Group understand the complexities of this issue and want to help you achieve the best possible solution. Call us today at (407) 999-0099 to schedule a consultation.