## Facts

- Divorced parents of two minor children adopted a parenting plan (later incorporated into the dissolution decree) giving father two weeknights and alternating weekends, with mother having the remaining time.
- The plan included a right-of-first-refusal clause requiring a parent who was “unavailable” during designated parenting time to offer the other parent the opportunity to care for the children.
- Father was an airline pilot and Air Force Reserve pilot; before his remarriage, the parents coordinated schedules, and mother exercised all parenting time during father’s deployments.
- After father remarried, during a deployment the children spent limited time with stepmother during father’s scheduled parenting time, with mother exercising the remainder.
- Anticipating another deployment, father moved to modify responsibilities to equal time and sought an order allowing the existing schedule to continue during deployment, with stepmother caring for the children in father’s home during his designated time.
- Mother objected that father was effectively transferring parenting time to a nonparent and that the right-of-first-refusal clause required father to offer her the time when he was deployed.
- The trial court ruled the decree did not bar father from having stepmother provide care during his parenting time; found both parents fit; concluded the arrangement served the children’s best interests; and allowed stepmother to care for the children in father’s home during his designated time while he was deployed.

## Issues

1. Whether a fit parent may arrange for a third party (a stepparent) to care for children during that parent’s court-ordered parenting time while the parent is deployed, without granting the third party independent parenting rights or modifying parental responsibilities.
2. Whether using a stepparent as caregiver during deployment makes the deployed parent “unavailable” so as to trigger a parenting plan’s right-of-first-refusal clause in favor of the other parent.

## Decision

- The Colorado Court of Appeals affirmed.
- A fit parent may decide who will provide day-to-day care for the children during that parent’s parenting time, including allowing a stepparent to provide care during a military deployment.
- Allowing stepmother to care for the children during father’s designated time did not grant her legal parenting rights and did not modify the parenting plan’s allocation of parental responsibilities or parenting time.
- Father’s deployment and use of stepmother for care did not, on these facts, violate or automatically trigger the right-of-first-refusal provision.
- The best-interests finding supported maintaining the children’s schedule and established relationships in father’s household during the deployment.

## Legal Principles

- Fit parents are presumed to act in their children’s best interests when making decisions about care during their court-ordered parenting time.
- A parent’s delegation of physical care to a third party during the parent’s own parenting time is generally distinct from a judicial grant of parenting time or decision-making authority to a nonparent.
- Permitting a stepparent to provide care during a parent’s designated time does not, by itself, reallocate parenting time or create enforceable parental rights in the stepparent.
- A right-of-first-refusal clause is construed in light of its purpose and the parenting plan; a parent’s arranged caregiving during the parent’s allotted time does not necessarily constitute “unavailability” requiring transfer of that time to the other parent.
- Orders recognizing a fit parent’s choice of caregiver, without reducing the other parent’s court-ordered time, do not present the same concerns as awarding independent custody or visitation rights to a nonparent.

## Conclusion

The court upheld an order allowing a deployed, fit parent to have a stepparent care for the children during the parent’s scheduled parenting time, holding that this was a permissible exercise of parental authority that neither modified the parenting plan nor required application of the right-of-first-refusal provision on these facts.


In re Marriage of DePalma, 176 P.3d 829 (Colo. App. 2007)