What Is the First Right of Refusal in Custody?

When parents split, a question often arises: who should look after the children when a scheduled parent suddenly becomes unavailable for several hours?

Utah answers with the first right of refusal (sometimes called the right of first refusal). This clause requires the on-duty parent to offer parenting time to the other parent before turning to a babysitter, day-care center, or relative. Utah courts presume that a child benefits most from parental care, not surrogate care, when feasible under the circumstances – a presumption written into Utah Code § 81-9-202.

Parents facing divorce in Utah quickly discover that small scheduling gaps can spark outsized conflict. If you want to minimize friction, protect your relationship with your child, and avoid costly litigation, call 801-348-6723 now to schedule your consultation with a top-rated divorce attorney in Utah that has helped families draft rock-solid custody decrees for decades.

How the Right Works – and Why Utah Favors It

Utah’s public policy is clear: parental care is “presumed to be better care for the child than surrogate care,” and courts “shall encourage” parents to cooperate whenever one parent’s time conflicts with work, medical appointments, or military obligations. A typical order triggers the right after three or four consecutive hours of absence, although judges may shorten or lengthen that window when a child’s age, school schedule, or special-needs routine demands flexibility.

Because many Utah divorce decrees already incorporate this presumption, adding an explicit clause usually aligns with judicial expectations. And once the clause is in place, each parent must offer the other parent the opportunity to care for the child during the specified period; failure to do so can lead to contempt findings and make-up time.

Utah courts also rely on this clause to reduce unnecessary third-party care costs, thereby preserving marital resources for direct child support. When parents know that missed time automatically shifts to the other household, they are more inclined to share detailed calendars, give advance notice, and cooperate on transportation—behaviors judges routinely praise in minute entries.

This predictability makes it easier for employers to approve flexible schedules because parents can present a written plan backed by court authority. The clause also dovetails with Utah’s growing preference for joint physical custody, ensuring neither parent becomes a mere weekend visitor while still giving the court a bright-line test for enforcing cooperation.

Why Courts Prefer Parents Over Babysitters

Family-law judges review every custody proposal through the lens of a child’s “best interests.” Utah case law reflects social-science research showing children thrive when they maintain meaningful relationships with both parents. Giving the non-custodial parent additional care time—rather than relegating the child to day-care—serves that objective while reducing child-care expenses.

Parents who proactively bargain for the right avoid last-minute arguments, preserve trust, and often need less post-decree litigation. Practitioners regularly note that clients who secure detailed language about notice methods (text or email) and response deadlines (e.g., two hours) report fewer disputes six months down the road.

Judges also recognize that frequent contact limits the “re-entry” problems children sometimes experience after long gaps between visits. Short, consistent hand-offs reinforce bedtime routines, homework habits, and sibling bonds across both homes. For parents on rotating shifts—think nurses, first responders, or airline crews—ROFR provisions create a built-in safety net that is more child-focused than a paid sitter.

Studies emphasize that high-quality parental engagement correlates with better grades and lower behavioral issues, giving courts a data-driven reason to favor mom or dad over a non-relative caregiver whenever practical.

How Long Is “Too Long”?

The statute does not fix an exact number of hours. Instead, Utah judges analyze factors such as:

• the child’s age and routine;
• each parent’s commute;
• distance between households; and
• whether overnights are involved.

Most Utah divorce decrees use a three-to-four-hour threshold. Others impose a shorter 90-minute trigger if a parent’s work shift starts late at night. A narrow window can be helpful when infants are nursing or when one parent’s employment regularly pulls them away overnight.

Divorces in Utah also involve teens with busy extracurricular calendars. Courts may carve out exceptions so teenagers can stay at a sports tournament without up-ending a tightly drafted schedule. Precision prevents future ambiguities and preserves goodwill.

Judges sometimes create tiered triggers: two hours for weekdays, four hours for weekends, and “overnight” for any absence crossing midnight. This blend addresses varying school demands and encourages parents to weigh the logistics of late-night exchanges against a child’s need for uninterrupted sleep.

Families living farther apart—say, Ogden to Provo—may agree that anything under three hours is de minimis to avoid highway fatigue. When parents disagree, the court often orders a temporary schedule, then revisits the trigger after six months of real-world data. Such tailoring showcases Utah’s effort to keep statutory goals adaptable to modern family life.

Drafting an Enforceable Clause in Your Decree

An ROFR provision should spell out five essentials:

• Trigger period. Insert the exact number of hours or “overnight.”
• Notice method. Text, telephone, or email? Specify.
• Response time. Most orders require acceptance or refusal within one hour.
• Transportation. Identify which parent drives.
• Make-up time. Clarify if lost hours roll forward.

A decree that omits one of these points invites argument. Utah divorce lawyers often integrate additional language covering weather delays, emergency exceptions, and “persistent refusals,” protecting parents who repeatedly accept the offered time only to face last-second cancellations. For more detail on custody agreements, visit our Divorce Practice Area page.

Modern clauses now reference parenting-time apps (OurFamilyWizard, TalkingParents) to automate timestamped offers and replies, eliminating “he said, she said” contests. Clear language should also bar pass-through offers (“I can’t, but Grandma can”) to maintain the statute’s emphasis on parental care.

Transportation terms work best when tied to school pick-up or drop-off points, reducing the child’s travel time. Finally, include a proportional remedy: the parent who causes lost hours covers reasonable child-care fees, plus provides equal make-up time within 30 days. This tangible consequence deters casual violations and demonstrates to the court that both parents share accountability.

When the Clause Becomes Controversial

Even well-intentioned parents may weaponize ROFR clauses:

• Short-notice refusals. Parent A offers time two hours before leaving; Parent B claims unavailability due to work. Parent A calls a babysitter, and Parent B files a motion, alleging bad faith.
• Third-party interference. Grandparents expect to help with childcare, but the clause blocks them.
• Chronic breaches. One parent ignores the procedure entirely.

A divorce lawyer in Salt Lake City can defuse these flashpoints by negotiating tailored amendments or seeking court clarification. Judges can impose make-up time, award attorney fees, or modify the trigger window.

Courts also see conflict when new romantic partners push for “family time” that sidelines the other parent, sparking allegations of alienation. Another flashpoint arises in blended families: half-siblings may attend the same after-school program, yet ROFR requires extraction for the child subject to the decree, creating logistical headaches.

In high-conflict cases, judges sometimes appoint a parenting coordinator with limited authority to make real-time decisions about disputed exchanges. Legal counsel ensures that coordinator directives stay within statutory bounds and that any recommended changes flow formally through the court, preserving enforceability and due-process safeguards.

Enforcing the Right Through Utah Courts

If informal reminders fail, a parent may file:

• Order to Show Cause for Contempt. Utah’s civil-contempt statutes allow courts to sanction a parent who violates a clear order.
• Petition to Modify Parent-Time. Repeated breaches may justify shifting legal or physical custody if the child’s stability is jeopardized.

Successful enforcement hinges on evidence: screenshots of unanswered offers, app logs, and childcare receipts corroborate each alleged violation. An attorney will bundle these items into a concise affidavit and may subpoena day-care attendance records to prove the child’s location. Courts typically schedule a case-management conference within 30 days, followed by a motion hearing.

Temporary orders—like immediate make-up time—can be issued within weeks, giving swift relief. Where distance or health concerns exist, Utah’s e-filing and Webex courtroom platforms allow parents to testify remotely, minimizing work disruption while maximizing compliance and courtroom efficiency.

Updating an Older Decree Without a ROFR

Many pre-2015 orders lack explicit ROFR clauses. Parties may stipulate to modify their decree or file a motion under Utah Code § 81-9-208 showing a “substantial change in circumstances,” such as a parent’s new shift schedule. Evidence of extra day-care costs typically supports modification. Parents negotiating uncontested divorce settlements today should embed ROFR language at the outset; doing so eliminates another trip to court later.

A motion to modify requires three core elements: a verified petition outlining the change, a proposed amended decree with precise ROFR terms, and a declaration comparing current child-care costs to projected savings once the clause takes effect. Judges often fast-track uncontested modifications, approving them after a brief pro-forma hearing or even on written submissions when both parties agree.

If the other parent opposes, mediation becomes mandatory; skilled counsel can leverage hard numbers—showing, for instance, that daycare costs exceed $600 per month—to persuade the court that a modification serves the child’s financial and emotional welfare.

Get a First Right of Refusal Clause with Read Law

Utah courts value parents who put children first; a clear right-of-first-refusal clause is one of the simplest ways to demonstrate that commitment. If you need precise drafting, firm enforcement, or thoughtful modification, Read Law offers time-tested strategies and seasoned trial advocacy to safeguard your parent-time—contact us today at 801-348-6723 and give your family the certainty it deserves.