The “First Right of Caretaking” (FROC) clause in Parenting Plans has been misused to the extent that it’s become more of a means to fight with the other parent rather than do what is best for the child.
By Annette Burns, Family Law Specialist
Do you let your clients sign Parenting Plans with a clause like this one?
CHILD CARE FOR CHILD AND FIRST OPPORTUNITY TO OTHER PARENT.
When the parent who has residential responsibility for the child is unable to care for the child for more than six (6) consecutive hours, the other parent will be offered the first opportunity to care for the child before another care provider is obtained.
This provision is sometimes called “first right of caretaking” (FROC) or even “first right of refusal”. I’ll call it FROC in this article.
When these clauses appear, the number of hours that trigger the FROC can vary. The six-hour provision in the clause above is arbitrary. Some Plans use time periods as short as two-to-four hours, or longer periods of time like overnights.
The clause is deceptively innocent. If Dad is assigned parenting time with Jared and Dad has to be away from Jared for a given number of hours (say, six hours), isn’t it logical that Mom should always be the first choice of caretaker (if she’s available) before Dad asks someone else take care of him?
The “First Right of Caretaking” Clause: Issues & Abuses
Some of the abuses of this provision that have actually happened include:
- A parent insisting that a child may not attend after-school or daycare, or camp while the residential parent is at work, because the working parent isn’t caring for the child and non-residential parent is available.
- A parent stating that a child can’t spend an overnight with a friend or relative because the residential parent won’t be there, thus triggering the FROC clause.
- A parent refusing to allow a child to spend any time with a stepparent unless the residential parent is also present.
Even if none of the highly unreasonable situations above come up, some of the issues that arise with a FROC clause include:
- Who will transport the child back and forth between households for the period of caretaking?
- What if the parent who wants to be caretaker places restrictions on his or her ability to take care of the child? The response regarding caretaking could be “I get to take care of him, but as you’re going to be out until at least 9 pm, Jared must stay overnight at my house and you can pick him up the next morning.” Is that reasonable?
- What if the non-residential parent is asked to care for the child and the response isn’t an unequivocal “yes”? The response about caretaking could be “I can possibly do this, but I need to check on something and I’ll get back to you.” If this conditional response is followed by a delay of several days, it puts the residential parent in a bad position, unable to make other plans while he waits for a response. How long does the custodial parent have to wait for an answer before calling a babysitter?
- What if the residential parent’s family (grandparents, aunts, uncles, etc.) could easily care for the child at his own home, to minimize disruption to both the child and the parent?
Unfortunately, the FROC clause has been so frequently misused and abused that it can, in a difficult case, become much more about the parents and their disputes than about what’s good for the child. Enforcement of a FROC clause often comes up in stepparent or grandparent situations, where one parent seeks to prevent a stepparent or grandparent from having any alone-time with a child when the residential parent is unavailable.
When Childcare Isn’t Always Provided by a Parent: Benefits
While some parents maintain that care by a parent is always best for a child, the benefits of a child being occasionally cared for by someone other than a parent can include:
- The child may be able to remain in the residential parent’s home and won’t require transportation;
- The child can develop relationships with extended family, including grandparents, aunts and uncles and cousins, through extended stays or sleepovers;
- The child can develop social relationships through extended stays or overnights with friends;
- The child develops social relationships and makes friends by attending formal daycare or after-school care with others;
- The child can rely on the schedule and routine of being in one parent’s house on certain days, without experiencing back-and-forth or confusing schedules;
- The parents don’t have to resolve sometimes complicated issues of who must provide transportation each way for the child;
- The parent who has residential time can ask a paid care provider to do other things at the parent’s home, like housework, preparation of meals, and homework help.
The FROC clause likely started out with the best of intentions. It has been unfortunately misused to the extent that it’s become more of a means to fight with the other parent rather than do what is best for the child. The argument that a child is always better off being cared for by a parent than by anyone else fails – because if that were true, a child might never attend formal school or take part in extracurricular activities.
Is a FROC Clause Really Necessary?
Consider that when a Parenting Plan doesn’t have this clause, each parent is still free to choose to call the other parent when child care is needed. An agreement is always possible. The difficulties arise from the issue of being forced to use the non-residential parent as caretaker no matter the circumstances and without regard to what’s best for the child in a given situation.
The FROC clause stymies court rulings as well. In an early 2021 Wisconsin court decision, Hanson v. Beach, a court had to address allegations of contempt when a father allowed his new partner to pick up his children for him on school days, and the new partner sometimes cared for the children in Father’s absence until he returned home from work. The first right of caretaking clause was invoked when Father allowed his older children to care for the younger children without calling Mother first.
Upon review, the Wisconsin Court of Appeals determined that having someone transport the children for Father was not a violation of the FROC provision. But Father was found in violation of the clause for having either his new partner or his older children care for the children after school until Father returned home from work.
This finding was only possible because of the parties’ specific Plan language, which absolutely required Father to offer the children to Mother before using any other caretaker. This provision was so strict that it meant even the children’s own older sibling could not care for them in Father’s absence. By agreeing to the FROC provision in that case, each parent gave up the right to choose his and her own caretakers, after-school providers, nannies, or short-term babysitters during his and her own parenting time. This decision illuminates some basic problems with this type of clause.
First Right of Caretaking Can Work in Certain Cases
Is this clause ever a good idea? With children younger than 6 or 8 years old, the clause could make sense if it applies to the residential parent being gone for an overnight. The clause could be written in a less restrictive way that leaves some discretion to the residential parent. When your client is considering whether a first right of caretaking clause should be in his or her Parenting Plan, talk to the client about potential pitfalls, and consider more specific language like:
CHILD CARE FOR CHILD AND FIRST OPPORTUNITY TO OTHER PARENT.
When the parent who has residential responsibility for the child is unable to care for the child for an overnight period of time, the other parent will be offered the first opportunity to care for the child for the overnight period during the hours the custodial parent is unavailable. When the residential parent makes the offer of caretaking, the non-residential parent will respond with a definitive “yes” or “no” to the offer within 24 hours of receiving the offer. The failure of the nonresidential parent to communicate an unequivocal “yes” within 24 hours will be considered to be a negative response, and the residential parent will in that case be permitted to obtain his or her own third-party child care. This first right of caretaking does not apply to a child who will be spending an overnight with friends or family members. This provision ends at the time the child turns eight years old.
Annette Burns (JD) – a Family Law Specialist, past president of the Association of Family and Conciliation Courts, and a Fellow of the American Academy of Matrimonial Lawyers – received the State Bar of Arizona Family Law Section Lifetime Achievement Award in 2017. She served on every committee and task force that created, revised, and restyled the Arizona Rules of Family Law Procedure, from 2003 to the present. Annette is a co-author of BIFF for Coparent Communication (Unhooked Books, 2020) and of the Arizona Family Law Rules Handbook (Thompson/West publishers, updated annually). She maintains an ADR, family law, and parenting coordinator practice in Arizona. www.heyannette.com
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