What are my options regarding ROFR if there is no court order?

Attorney Jason HopperQuestion:

My soon-to-be-ex wants the kids to continue going to daycare even though I am willing and able to watch after them.

Since we are still married and there is no custody order in place, is it OK for me to make the decision to refuse to take them there and pay for daycare? Shouldn’t I have right of first refusal?

If she does take them to child care without my permission can I call the police for kidnapping or something else?


I will preface my fathers and divorce answer with the fact that while I am licensed to practice law in the State of Indiana, this response does not constitute an attorney client relationship and is being made only on the information you have supplied to me.  For a better analysis of your legal issues, I would encourage you to schedule a consultation with a divorce attorney.

You have asked what your fathers and divorce options are regarding rights of first refusal and in decision making for child care.  You indicated that you have not been to court for a determination of custody or parenting time rights.  Without a provisional order for custody, you and your soon to be ex are, to a certain degree, in a battle of wills concerning decision making for your children.

Regardless of the ultimate custody determination, most Indiana courts will order an implementation of section I of the Indiana Parenting Time Guidelines, which set out the rights that parents have to first refusal for providing child care, as well as how exchanges are to be facilitated.  In Indiana, unless a court orders to the contrary, prior to seeking out work related child care, a parent is to contact the other parent and provide them with the “right of first refusal” to provide child care for their child(ren). Only after that right to election has been passed up, should the parent implement child care.

Because no custody order is in place, I would encourage you to document your interactions with your spouse and create a fathers and divorce paper chain either through written correspondence or e-mail setting out your concerns and desires to see your children. If your spouse persists in obtaining child care during time you could otherwise spend with your children, you could use that evidence against her in custody litigation.

I would discourage you from seeking involvement from law enforcement, unless it is a child safety issue, as that will inevitably lead to the children being exposed to the issues between yourself and your spouse.

Your best recourse would be to seek out immediate fathers and divorce legal assistance from an attorney who focuses on domestic litigation such as the attorneys at Cordell & Cordell.


Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana, office of Cordell & Cordell where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.

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3 comments on “What are my options regarding ROFR if there is no court order?

    Do the atty.s at Cordell and Cordell only help fathers in child custody cases or can they also represent the mother’s? Also can they represent someone on the state of Wisconsin?

    I just wanted to say that unless you are able to provide full time care for all the time your wife needs childcare, refusing to let her put the kids in daycare will mess up her ability to work. Most daycares require a contract where you have to pay, whether your kids are there or not…in order to hold their spot.

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