What is a Right Of First Refusal In Divorce And Custody?

Key Takeaways:

• A right of first refusal clause means that, before your ex can use a babysitter, daycare, or other childcare option, the non-custodial parent gets first dibs.
• This helps the noncustodial parent get additional parenting time and ensures the child is cared for by a parent rather than a third party.
• These situations commonly include vacations, work trips, dates, and other absences.
• To be effective, the parenting plan must clearly define how often the right of first refusal applies, the minimum length of an absence, how much notice is required, and other specifics.
• There are many potential benefits to a right of first refusal clause, but there are also multiple possible problems and complications.

One of the most common issues parents have following divorce is not getting to spend enough time with their kids. In some scenarios, a right of first refusal clause can help.

Like with almost every other aspect of child custody and divorce proceedings, the right of first refusal comes with benefits and drawbacks. Here’s what you need to know moving forward with your case.

What is a Right of First Refusal Clause?

In child custody cases, the right of first refusal is a provision in a parenting plan that affects the time noncustodial parents spend with their children. It allows a parent to capitalize on opportunities to look after their kids.

At a basic level, a right of first refusal clause means that, before your ex can use a babysitter, daycare, or other childcare option, you have the first shot to step in and take that role.

This applies to a variety of situations, such as when your ex has a date, goes on vacation, or takes a business trip. If there’s a right of first refusal clause, the custodial parent must give the noncustodial parent first dibs.

This also applies in other circumstances, and, like many other clauses, it has regulations and stipulations. In ideal circumstances, this helps make up for limited visitation and allows noncustodial parents the opportunity to spend additional time with their kids.

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What are Common Questions?

This can be a positive for everyone involved. The right of first refusal often benefits you, your ex, and, most importantly, your children. It can help provide child care when needed, plus you get more face time with the kids. That sounds like a win all around.

That said, the right of first refusal is a broad term. To be effective, the parenting plan needs to include specific, detailed language about how you will use it.

This should spell out, in precise terms, the particular agreement, including the scope and limitations. In short, you must establish how this arrangement will work.

There are several questions to ask and many factors to consider.

• How often? Is this situation going to come up regularly, or is it something that will only happen sporadically?
• Work-related child care? Is work-related child care a part of the arrangement? One side may want to include this for consistency and convenience. The other may want to exclude it to maximize parenting time.
• Time requirements? Does an absence have to be significant, like several hours, to qualify? Or does the right of first refusal also include quick trips to the supermarket?
• Extended family members? Can your ex opt to leave the kids with their grandparents or a nearby aunt or uncle? Or do you always get the first opportunity?

These are just a few questions that come up. They are also things your parenting plan should specifically address. It’s important to establish what is and isn’t covered under the right of first refusal. Clarity is key.

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What are the Potential Problems With a Right of First Refusal?

While the right of first refusal may fit a particular situation well, it’s not right for every case. It may work perfectly in some circumstances, but it actually does more harm than good in others.

Here are situations that may become problematic:

Conflict

If you and your ex are amicable, on good enough terms, and can cooperate, this has a chance to work. If not, problems often occur when there’s conflict between the parents. The right of first refusal requires the parents to communicate without fighting or bickering.

Overreliance

When one parent relies too heavily on the right of first refusal, it can cause friction. Though you want to spend as much time with the kids as possible, it’s not always practical. You can’t always drop whatever you’re doing immediately.

Distance

The greater the distance, the more issues arise. Having to drive across town or to another town entirely can render the right of first refusal pointless in many situations.

Supervised Visitation

When the parenting plan limits parenting time to supervised visitation, the right of first refusal may not apply and even run counter to the child’s best interests. If the custodial parent can’t be there but must find someone else to supervise the visit, it becomes increasingly impractical.

Domestic Violence

There needs to be trust, communication, and cooperation to make the right of first refusal work. In situations where there’s a history of domestic violence, this may definitely do more harm than good.

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Do You Need a Right of First Refusal Provision in Your Parenting Plan?

Every child custody situation is as different as the individuals involved. As such, there’s no easy answer to whether or not a right of first refusal clause is appropriate for your case.

A complicated provision in parenting plans, they can be a useful tool that benefits everyone involved. Your ex gets child care, you get to spend more time with the kids, and your children get more time with you.

That said, it’s important to consider it from every side. It may have a positive impact, but it may also prove harmful; it can often ease tension, but may also cause more conflict. Like most child custody arrangements, it’s key to take the time to make sure it’s the right choice.

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