IS THE “BABYSITTER-OF-FIRST-CHOICE” RULE DEAD?

For years, family lawyers and family Courts have imposed the “babysitter-of-first choice” rule (also known as the “caretaker-of-first choice” rule or, simply, the “first choice” rule) on parties with children. This rule, simply put, means that whenever one parent has the child or children and they find themselves needing a babysitter, they must offer the other parent the option of having the child first before setting the child with a relative, new spouse or even a hired babysitter. The logic behind this rule being that the child should be with the other parent before being place with another person, and the parent who needs a babysitter does not have to burden someone else or pay for a caretaker. Makes sense, right?

This rule, however, is not without its problems.

First, there usually is a time limit set before the rule takes affect. That is, if I have to run up to the store for 20 minutes because we are out of milk, I should not have to call the other parent when my new spouse can watch the child for this brief period of time. Accordingly, there is usually a time placed on the rule before it kicks in. For example: “The parties shall exercise the “babysitter-of-first choice” rule for periods that they are away from the child in excess of two (2) hours or more.” There are infinite varieties on this time limit. Some say “four hours,” some say “for periods in excess of eight hours, or anytime the parent is gone overnight.”

Second problem is accurate reporting and/or proving that somebody is violating the rule. Obviously, if the spouse needing the babysitter does not inform the other parent of this fact, how do you enforce it? Sadly, it often requires the child to "rat out" the other parent which causes distrust, ill feelings and places the child in the middle of a parental argument. This, of course, is usually detrimental to the parent/child relationship. Alternatively, to prove a violation of the rule, sometimes some form of spying or checking up is required and this is not usually seen as healthy either.

The third problems stems from the argument “why can’t I have my Mom, brother or new spouse watch the child for a few hours here or there?” In most instances, I think that people would agree that the child would benefit from seeing grandmother or an uncle and cousins as part of their association and assimilation into the large family unit.

Finally, as the child or children matures in age, it is not unusual that they do not need (or want) a babysitter for a few hours if Dad or Mom have to work for four hours on a Saturday. Except in cases where a child needs supervision and/or cannot be trusted to stay somewhere without a parent being nearby, why can’t junior just stay home and work on his/her homework or play X-box without having to be carted over to the other parents house for a few hours?

For these reasons and more, the babysitter-of-first choice seems to be falling out of favor with Judges these days. Most Judges nowadays are finding the rule extremely difficult to enforce. Additionally, it often causes more litigation and friction between the parents.

Certainly, if the parents agree to it, the Judge will more than likely order it, especially with younger children. Moreover, if you can prove that it is more than the occasional putting the child with grandmother then you may get a court to impose such a restriction or start cutting down a parenting schedule. In other words, if you can convince that Judge that this dropping off is fairly consistent, you may have a chance of convincing the Judge that it is in the child's best interests to be with you (.i.e., a parent) rather than another (i.e., a grandparent, new spouse or babysitter) all the time. Lastly, on health or safety issues, you will probably have a better chance in getting a judge to order this type of requirement.