Does the Right of First Refusal Apply to Stepparents?

Hi, I’m Marco Brown from Brown Family Law, divorce attorneys in Salt Lake City, Utah.

One of the questions we get asked pretty often about the right of first refusal is whether or not it applies to stepparents. What I mean by this is whether or not you can leave your kid alone with your new wife, or your new husband without telling your ex about it the reason this comes up?

Most of the time in divorce decrees when there’s right of first refusal language, you have what’s called parental care, which means that you have to provide direct care to your child, or give your ex the opportunity to provide direct care to the child, instead of leaving the child with a third party or surrogate care.

Usually surrogate care is a mom or a sister or a daycare.

But the question becomes this: is surrogate care stepparent care as well?

This seems like an odd question. We usually think of stepparents as parents, but that’s really not the case in the law when it comes to the right of first refusal.

Here in Utah what we’ve found is that you need to write in the right of first refusal language that stepparents are not surrogate care; that they’re parental care.

Unless you do this, they’re likely going to be considered non-parental care or surrogate care, and you’re going to have to tell your ex you’re leaving your kid alone with your new husband or wife, and then give your ex the opportunity to give parental direct parental care to your kid while you’re gone.

Again, this seems really strange to do, but this is really how it needs to be, otherwise you run into these situations where your ex is going to try to take your kid every time you’re gone and you leave your kid with your new husband or wife.

This is the language we use when we write this sort of thing into our divorce decrees because we’re thinking ahead.

We know that people are going to get remarried. We want them to get remarried. And we don’t want to have this kind of weird situation in which they have to give their kid back to their ex every time they want to leave their kid with the new husband or wife.

So, in conclusion what you need to do is write language in to your divorce decree that says that stepparents are not surrogate care, but they’re parental care.

And when you do this that will allow you to leave your kids with the new husband and or new wife and not talk to your ex about it; otherwise you’re going to run into some pretty serious problems.

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