First right of refusal

[Luving StepMom]

Hello Soc - just a quick and hopefully "easy" one for you tonight...

Do you know if every state has a "first right of refusal" law that says if the parents live in the same town the child should not go to a daycare if the other parent is available?

I have read my state's guidelines for visitation and don't see anything - the state is South Dakota.

The reason I ask is that BM's hours are changing and she will be working until 8:30pm. She would rather have a babysitter at her house than let my stepson come here with his us.  They haven't gotten too far into the debate yet (I'm sure there's more to come) but we wanted to know if there's law to stand behind the fact that it would be better for him to be with his father than a babysitter.

Also, could that be considered a substancial change of circumstances?  Granted, if push came to shove she'd probably quit/change jobs if meant losing custody, but we have a lot more - just not that substancial change.

Thanks for your help!

[socrateaser]

>Do you know if every state has a "first right of refusal" law
>that says if the parents live in the same town the child
>should not go to a daycare if the other parent is available?

No, very few states have such a statutory requirement.

>Also, could that be considered a substancial change of
>circumstances?

Well, actually, it probably IS a substantial change affecting the child's best interests, because it creates circumstances where the child will now need daycare, and where the child could be better cared for by a concerned step parent than by a disinterested third party. In the alternative, I would move for a "clarification" of present orders to include a right of first refusal, on grounds that the parties are impliedly (or perhaps expressly, because I haven't read your orders) ordered to cooperate in the child's best interests, and an order permitting you to exercise custody during work hours works to the child's best interests.

That's how I'd argue it.