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# Right of First Refusal in Colorado Parenting Plans: How to Draft It
- URL: https://blog.denverdivorce.com/right-of-first-refusal-colorado/
- Published: 2026-10-16T14:00:00.000Z
- Updated: 2026-10-16T13:59:59.000Z
- Description: No Colorado statute creates a right of first refusal. It exists only if the parenting plan says so, and how it is written decides whether it adds parent time or becomes the most litigated paragraph in the plan.
- Author: Aaron Herzberg
- Tags: Children

A right of first refusal says that when a parent cannot care for the child during that parent's own time, the other parent gets the first chance to step in before a babysitter, a grandparent, or a new partner does. Parents ask for it constantly, and many are surprised to learn that no Colorado statute mentions it. It exists only because the parents wrote it into the plan or a judge added it as a best-interests term, and its value depends almost entirely on the drafting.

In cooperative families the clause does what it promises: more time with a parent instead of a sitter, and lower child-care bills. In high-conflict families it becomes a surveillance tool and the most litigated paragraph in the plan. This article explains how the clause is built, how judges respond when one parent wants it and the other does not, and what happens when it is ignored.

## Not in the Statute: A Negotiated Clause

[C.R.S. § 14-10-124(7)](https://law.justia.com/codes/colorado/title-14/dissolution-of-marriage-parental-responsibilities/article-10/section-14-10-124/?ref=blog.denverdivorce.com) lists what a Colorado parenting plan addresses: decision-making, a practical schedule including holidays, exchange procedures, communication between the parents, parent-child contact, and "any other orders in the best interests of the child." That last phrase is the only statutory hook for a right of first refusal. The state's parenting plan form, JDF 1113, does not require one. There is no default trigger, no presumption in its favor, and no case law defining its terms.

The default without a clause is the opposite of a right of first refusal. In *In re Marriage of DePalma* (Colo. App. 2007), a father facing military deployment arranged for the children's stepmother to care for them during his parenting time, and the mother wanted that time instead. The court held that a fit parent's choice of caregiver during his own time is presumed to be in the children's best interests. Absent a clause, a parent picks the sitter.

![The Thatcher Memorial Fountain in City Park, Denver](https://storage.ghost.io/c/9c/7f/9c7f0f22-0ab1-4be3-88a9-68ce015e9524/content/images/2026/09/right-of-first-refusal-colorado.jpg)

The Thatcher Memorial Fountain in City Park, Denver. Photo: Carol M. Highsmith, Library of Congress (public domain).

## The Trigger: Four Hours, Eight Hours, or Overnight

The single most important drafting choice is how long an absence must be before the right kicks in. The options run from "any absence over four hours" to "overnight only," and each carries a tradeoff.

- A short trigger, four hours or so, maximizes parent time. It also reaches into every late meeting, dentist appointment, and evening class, and it invites one parent to police the other's calendar. In practice a four-hour trigger generates the most motions.
- An eight-hour trigger during waking hours catches a full workday but ignores errands and dinners out. It is a reasonable middle ground for parents who work irregular shifts.
- An overnight trigger is the most common choice in plans that get to trial, because it is easy to verify and rarely disputed. A parent either slept somewhere else or did not.

Whatever the number, define "unavailable." A parent working from home is present; a parent at the hospital with a sibling is absent. The clause should also apply to both parents equally; a one-way right of first refusal breeds resentment.

## Exceptions, Notice, and Response Deadlines

A clause with no exceptions will be broken within a month. Well-drafted plans exclude, at a minimum: school, daycare, and camp during their normal hours; the child's own scheduled activities and sleepovers; care by a grandparent, stepparent, or adult sibling; and emergencies. Whether stepparents and new partners are inside or outside the clause is the hardest negotiation, and after *DePalma* a parent who wants them inside must say so expressly and should expect resistance.

The mechanics then need to be exact. Notice goes through the co-parenting app, in writing, as soon as the absence is known and no later than a set number of hours before it begins. The other parent responds by a set deadline, commonly two hours or a fixed time that evening. Silence is a decline. The parent exercising the right handles pickup and return, and the child goes back on the regular schedule at the normal exchange time.

One new drafting point: since March 1, 2026, every overnight counts toward Colorado's child support parenting-time table. A plan should state whether overnights exercised under a right of first refusal count. Most say they do not, to keep support fixed and remove the incentive to manufacture absences.

Add a sunset. The clause makes sense for a five-year-old and little sense for a fourteen-year-old who can stay home alone. Many plans end it at a set age or convert it to a courtesy notice.

## Why It Works for Some Families and Fails for Others

The clause depends on trust, because the trigger is nearly impossible to verify without one parent monitoring the other. Cooperative parents already tell each other when they are traveling. In high-conflict families the clause produces questions to the child about who watched him, demands to know where the other parent was, and motions over whether an absence was four hours or four and a half. It also hands each parent an effective veto over the other's new relationship, since the new partner cannot be left with the child. Where there has been domestic violence, a clause that forces contact and disclosure of a parent's whereabouts is affirmatively dangerous; C.R.S. § 14-10-124(4)(e) points courts toward limiting contact between the parties in those cases, not increasing it.

That is how judges tend to see requests to impose the clause over an objection. With no statute creating an entitlement, the question is best interests, and the evidence that matters is the same evidence that drives decision-making: whether the parents have shown a credible ability to cooperate, and whether each supports the child's relationship with the other. Where both parents ask for it, courts approve it routinely. Where one parent wants it and the file shows a parenting coordinator and a history of exchange disputes, most judges decline to add a term that requires more coordination than the parents can manage.

## Enforcement When the Clause Is Ignored

A right of first refusal is part of the parenting time order, so a violation is enforced under C.R.S. § 14-10-129.5\. The complaining parent files a verified motion setting out the order, the violation, and the sanctions requested. The court must act within thirty-five days by denying the motion, setting a hearing, or ordering mediation with a report back within sixty-three days. The statute asks whether there has been "substantial or continuing" noncompliance, so one skipped notice rarely gets to a hearing; a documented pattern does.

If the court finds a violation, it may order make-up time of the same type within six months, require parenting classes at the violator's expense, impose a civil fine per incident, modify the order, or enter any other order in the child's best interests. An award of the aggrieved parent's attorney fees is mandatory, which is what makes a well-documented motion worth filing. The court can also do the opposite: where the clause has become the source of the conflict, a judge can remove it as a best-interests modification of parenting time.

## How a Well-Drafted Clause Reads

A good clause is reciprocal and about a page long. It opens by defining the trigger in hours or overnights and defining unavailability. It lists the exclusions by name: school and camp hours, the child's activities, care by named categories of relatives, and emergencies. It sets the notice method and the earliest and latest times for notice, the response deadline, and the rule that silence declines. It assigns transportation and confirms the child returns at the next regular exchange. It states that exercised time is not make-up time, does not alter the schedule, and does not count as an overnight for child support. It ends with the sunset age and a sentence sending disputes to the plan's dispute-resolution ladder before anyone files a motion.

## Talk to a Denver Divorce Attorney About a Right of First Refusal

Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on divorce, custody, and financially complex family law. The right of first refusal is the clearest example of a clause that helps or harms depending on a few words chosen before the plan is signed, and it deserves a hard look at how the two of you actually communicate. A first meeting is a paid consultation, not a free call and not a sales pitch.

Read the full guide on DenverDivorce.com: [Parenting Time in Colorado](https://denverdivorce.com/practice-areas/parenting-time.html?ref=blog.denverdivorce.com).

*Educational information only, not legal advice. Reading this article does not create an attorney-client relationship.*