I had a hearing on a divorce case a couple days ago that involved, at least tangentially, the right of first refusal (a.k.a., the first right of refusal). The commissioner made some interesting comments, so I thought I’d share them.
ROFR, as I so nerdily refer to it in writing, is something I really don’t much care for. It’s a good idea (children should be cared for by their parents and not third parties) but a bad reality.
It leads to massive contention between parents who don’t like each other much already. This is because the ROFR system is built on honesty and trust, which is in short supply in divorce and child custody cases. Moreover, enforcement is a nightmare. It’s difficult to prove violations and courts don’t really like punishing parents for violations. ROFR is almost never worth the trouble, which is why we don’t include it in our divorce decrees or paternity orders.
Then there are cases that really do require the ROFR. Certain jobs, usually those requiring lots of overnight travel, create situations in which children will be left with a third party for days unless there is the ROFR.
And this brings me back to my divorce hearing. We were dealing with some financial and parent-time issues. At one point, I told the commissioner if the other side wanted more money, he/she could simply work more hours, which is what everyone who wants more money does. I thought this was a pretty persuasive argument since this person wasn’t working anywhere near full-time.
The problem came because, when this person works, it’s for three to four straight days (nature of the job). Working more would mean being gone overnight more. Now, this shouldn’t be a problem, I thought, because my client exercises parent-time for multiple days at a stretch, so there’s an opportunity to work multiple extra days during that time. Straightforward, I thought.
The commissioner did not agree. The reasoning was if the other parent worked more, my client would get more overnights, and those overnights would add up to more than the average number he was awarded at Temporary Orders. This might change the temporary custody arrangement. Using this reasoning, the commissioner said the other parent could not be expected to work extra shifts to make more money.
I was a bit puzzled by this for a couple reasons.
First, I don’t believe exercising the ROFR can change a custody arrangement, in particular a temporary custody arrangement. This is especially true in a case in which the ROFR was ordered on a temporary basis specifically because the court knew one parent’s job required extensive overnight travel.
Second, this reasoning creates an odd situation in which a parent is clearly disincentivized from working full-time, thereby not working enough to meet basic needs, because working full-time might give another parent too many overnights with the children.
I’ve had a couple days to think on this, and I still don’t get the logic. Maybe I’m missing something fundamental here. Maybe another Utah divorce lawyer has run across this situation and has a different perspective. It seems to me, however, to be an off-target way to look at the ROFR in Utah divorce and child custody cases.
(Note: other than this peculiar ROFR reasoning, the hearing turned out very well, and the commissioner’s recommendations were spot on. Yet another reason why this portion of the hearing perplexed me so.)