Is There a Right of First Refusal? Explaining the Opportunity for Additional Parenting Time

When you work or have other commitments that keep you away from home during your scheduled parenting time, you have to offer that time to the other parent, right?  Well, maybe . . .  The idea seems simple, but the Opportunity for Additional Parenting Time section of the Indiana Parenting Time Guidelines (“IPTG”) (often called the “right of first refusal”) is one of the most misunderstood, misremembered and misinterpreted parts of the Guidelines.

Here’s the actual language of the Opportunity for Additional Parenting Time section:

“When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. 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 and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.”

Now that we know what it says, what does it really mean?  First let’s start with the fact that “the right of first refusal” is not anywhere in there.  In fact, the commentary to this guideline warns that the phrase “right of first refusal” is not really accurate.  To begin with there is no “right” and also no obligation to have the children.  There might be an opportunity to provide care for the children, but framing it as a “right” makes people defensive when they feel that right is being taken away.  In addition, “first refusal” is a bit confusing.  There is no obligation for the parent who cannot be present during his time to tell no one until he has told you about his unavailability.  He can tell others and get a backup care plan in place while he is figuring out if you are available to take the opportunity to spend additional time with the children.

So when does this opportunity need to be offered to the other parent?  First, notice that the language of the guideline begins with the need for child care.  This need for someone to provide care to your child is the triggering event.  That means if your child is seventeen years of age and you will be gone even all day, you are unlikely to need child care.  The age at which children can be left alone and for what period of time is not clearly defined, and depends on the circumstances.  The general rule is if you would ask a neighbor, friend’s parent or grandma to watch the child while you are gone, offer that time to the other parent.  If not, there is no obligation to offer the time.

Also notice that the rule specifies that if you need child care from someone other than a responsible household family member, you need to offer the time to the other parent.  Household family member is a person related by blood or marriage who lives in your household.  This includes a step parent, a sibling or grandma if she lives with you. Grandma staying in your spare room for a week doesn’t count.  She’s not living with you, she’s just visiting.

Notice a couple of other details about the guideline.  First, the opportunity must be offered if it is reasonable given the time and distance involved.  If you live an hour away from your co-parent, a brief absence of your co-parent might not trigger the opportunity for additional parenting time provision because it makes no sense to drive one hour to provide care for thirty minutes.  In addition, note that the guideline requires the parent who is providing care while the other is unavailable must do all the driving to make that extra time happen.

Finally, remember that the opportunity for additional parenting time only lasts as long as the other parent is unavailable.  When the other parent is back, the additional time immediately ends.  There is no ability to turn the extra time into an extra overnight or any additional time because it is not your parenting time.

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