Custody Scheduling Issues: What Happens If a Parent Is Unavailable?

What happens when one parent isn’t available to exercise their custodial time? Regardless of the reason that a parent is unavailable- be it for work-related travel, vacation, or other familial obligations- a common concern raised in custody cases is whether the other parent automatically has custody of the child or children who are the subject of the Custody Order. All parents are permitted to obtain appropriate childcare during their regular custodial periods, so the answer to that question is no. It is, however, possible to include a Right of First Refusal (ROFR) provision in a custody agreement to eliminate any stress or conflict over what happens if one parent is unavailable to exercise their custodial time.

What is the Right of First Refusal?

The Right of First Refusal is a provision included in custody agreements and/or orders that states that if the custodial parent is unavailable to exercise custody for a set period of time, they must offer the non-custodial parent the opportunity to care for the children or the child in question during that period. The non-custodial parent can accept or decline the offered custodial period, and there is often a set window of time in which they must make the decision, or they waive their right to exercise custody. If they decline, the custodial parent is then responsible for arranging appropriate childcare (a nanny, babysitter, family member, etc.).

Is the Right of First Refusal Right for Me?

For co-parents where one or both travel frequently for employment, the Right of First Refusal can be a valuable tool to eliminate uncertainty in the custodial arrangement, promote consistency for the child or children, and help reduce childcare costs and the stress of making frequent childcare arrangements. The Right of First Refusal is significantly less helpful in situations where neither parent has any form of regular travel obligation, as there will be few to no occasions when the provision would be relevant, and it will be moot from the start.

Additionally, parents should be mindful of the time required to trigger a Right of First Refusal provision. If the time period is short (i.e., three or four hours), the custody arrangement may involve the Right of First Refusal being invoked if one parent takes a lengthy shopping trip or runs multiple errands in a row, which often undermines the intent of the provision and creates chaotic and stressful scenarios for parents.

If you are involved in a custody action, a conversation with one of Obermayer’s family law attorneys can help you navigate the process.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.