who gets to refuse

Right Of First Refusal In Divorce And Custody

Goldberg JonesChild Custody, Featured Posts 5 Comments

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.

When it comes to child custody cases, the right of first refusal is a provision that impacts the time noncustodial parents spend with their children. It allows a parent to capitalize on opportunities to look after their kids.

In many cases, it helps one parent increase the one-on-one time they have with their children.

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?

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.

On a practical level, if your ex has a date, you get the first chance to look after the kids. The same goes for vacations, business trips, and other situations.

Your ex may want to send the kids to spend the weekend with friends. But if there’s a right of first refusal in place, the custodial parent must give the noncustodial parent the first chance to look after the children.

The right of first refusal also comes into play in other circumstances, and like many other clauses, it has regulations and stipulations. But this is a basic overview of how they work.

In ideal circumstances, this helps make up for limited visitation and allows noncustodial parents the opportunity to spend additional time with their kids.

Related Reading: How to Establish Paternity in Washington

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 facetime time with the kids. That sounds like a win all around.

That said, the right of first refusal is a broad term. In order to be effective, the parenting plan needs to contain specific, detailed language about how you 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 ahead of time. There are a number of questions to ask and factors to consider.

  • How often? Is this situation going to come up on a regular basis 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 chance?

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

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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 actually do more harm than good in others. Here are situations that may become problematic.


If you and your ex are amicable, on good enough terms, and can cooperate, this has a chance to work. If not, and there’s conflict, problems often occur. The right of first refusal requires the parents to communicate, at least on a basic level. But if you can’t talk to each other without fighting, this may give you another thing to bicker about.


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. This varies from case to case, but you can’t always immediately drop whatever you’re doing. No one wants to be taken advantage of.


It’s one thing if both parents live in close proximity to one another. But the greater the distance, the more issues arise. Driving miles across town and battling traffic the whole way isn’t always feasible. The same goes for parents who live in different towns. It 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 exes have a history of domestic violence, this may definitely do more harm than good.

Related Reading: What are the Odds of Getting Primary Custody?

Will the Right of First Refusal Work for You?

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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Comments 5

  1. If I give right of first refusal, and she can’t take the kids starting at the time that I need them watched, am I required to make other arrangements for her to be able to get the kids after the starting time that I needed?

    1. Post

      Hi Steven, thanks for reaching out. That’s a complicated question. I passed your contact information on to our managing attorney, Ken Alan. He will reach out to you and be able to provide a more detailed answer about your options. Thanks!

  2. Hi I was just wondering if he gets minimum visitation (I’m the primary parent ) and he’s trying to get the right to first refusal while I’m at work . does he get her while I’m at work and his visitation hours on top of that ?

    1. Post

      Hi Darleen. Thanks for the question. Custody and visitation, especially when it involves the right of first refusal, gets complicated in a hurry. I passed your contact information along to Ken Alan, our managing attorney. He will be in touch soon to answer any questions you have and give you an idea of options in your case.

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