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Who Picks the Child Care Provider & What is Right of First Refusal?

The decision to use child care, and the choice of providers, is typically the right of the parent caring for a child. In Ireland v Smith, 451 Mich 457 (1996), the mother and the child lived in an apartment in the university family housing unit. When she attended class, the child was cared for in university-approved day care. Her authority to select a child care provider was never questioned by the courts, although the Supreme Court noted that "actual and proposed child-care arrangements - whether in the custodial home or elsewhere - are a proper consideration in a custody case." 

The Right of First Refusal is a highly disputed issue in many cases. It may be an agreed upon provision that the other parent has the right to spend time with the child prior to a paid care provider or another family member. The provision needs to be very carefully worded to determine if the provision is for a certain period of time or overnight only during a business trip, non-work related, whether family members such as grandparents may watch the child before the other parent has to be contacted, who provides transportation, whether a step-parent could spend time with the child, the age of the child when a care provider is no longer necessary, and many other factors to take into consideration when utilizing this provision. It works well with parents that cooperate and drives many high conflict cases back into court.

In Van Malsen v Van Malsen, unpublished opinion issued April 24, 2012 (Docket No. 303689), the Court of Appeals affirmed the Trial Court's decision to remove the provision from the Judgment and that the right of first refusal provision is “often more problematic then helpful.” Especially when the child is put in the middle and continually questioned by each parent whether a babysitter was used during the other parent's parenting time.

Rebecca Tooman