The right of first refusal can be an important piece of a child custody order. After divorce or guardianship battles, non-custodial parents can use this measure to spend as much time with their kids as possible.
What Is The Right Of First Refusal In Child Custody?
If there’s a right of first refusal clause in a child custody order, this essentially means if your ex is not going to be with your child, you have the first shot at being there. Before they call a babysitter, daycare, or other childcare option, they must offer it to you.
This provision allows the non-custodial parent to capitalize on opportunities to spend more time with the kids. It often makes up for limited visitation and can take many forms.
How Does It Work?
The way it works is: If you have a right of first refusal clause in your child custody agreement, if you’re the non-custodial parent, you get the first chance to care for your child when the custodial parent can’t.
You have the right of first refusal to look after your children while your ex works instead of sending them to daycare. If your ex has a date, you have the opportunity to look after the kids instead of using a babysitter.
When the custodial parent plans a solo vacation, the non-custodial parent has the right of first refusal in deciding who the kids stay with.
This comes into play in other circumstances. However, this is a general overview of how these provisions work in practice.
Related Reading: Enforcement Proceedings: What To Do If Your Ex Violates A Parenting Plan
Common Questions
This all sounds great, like it can be positive for everyone involved. But does the right of first refusal ultimately benefit you, your ex, and, most importantly, your children? The answer isn’t always as simple as it seems.
Right of first refusal is a broad term, one that describes a particular type of child custody order. To be effective, it needs precise, detailed language that lays out the agreement’s intentions, scope, and limitations.
Basically, you need to establish how it will work ahead of time, and you have a lot to consider.
How often will these situations arise?
Will this be a regular occurrence or a once-in-a-blue-moon type of scenario? You need to make a plan based on your circumstances and the overall situation.
Does work-related childcare figure into the agreement?
One party may want to include this for ease and consistency, while the other may seek to leave it out to maximize parental time.
Is there a minimum time requirement?
Does the right of first refusal cover quick trips to the grocery store, or does there have to be an absence of several hours or an overnight stay?
What about extended family members?
Can your ex leave the kids with their grandparents or an aunt, or do you always get the first shot?
These and more are things that you need to address.
Related Reading: Finding the Best Child Custody Lawyer: What Qualities To Look For
When Do Problems Arise With A Right of First Refusal?
When discussing the right of first refusal, include specifics and exceptions for clarity. While it may be the right fit in some situations, in others, it may make already tense or difficult circumstances even worse.
Bad Communication Skills
If you and your ex can get along and be amicable, this may work well. If not, problems often arise.
This scenario takes two sides willing and able to communicate, at the very least on a functional level. But if all you do is fight, that contact may give you one more thing to argue about and worsen an already strained relationship. Cooperation and flexibility are key.
Overreliance
If one parent comes to rely too heavily on the other, it sometimes also leads to friction.
You may want to spend as much time with your kids as possible, but that isn’t always feasible. The custodial parent may come to rely on this setup, assuming the other will immediately drop everything. No one wants to feel they’re being taken advantage of.
Inconsistency
The right of first refusal can be a useful parenting tool for both parties. But haphazard, inconsistent use can increase conflict. If the non-custodial parent can’t cover child care, it still falls to the primary guardian to figure something out.
Supervised Visitation
In cases where one parent’s time with the child is restricted to supervised visitation, the right of first refusal may run counter to the minor’s best interest. It may also prove impractical.
Distance
Practicality issues also crop up when the parents live a great distance from one another.
Depending on where you live, crisscrossing town and fighting traffic may take a lot of time. For some, this may be workable, but for others, it’s far less pragmatic.
Domestic Violence
If there is a history of domestic violence between the two parties, the right of first refusal may cause more harm than good. Again, this requires cooperation and communication between parents to work. If so, the court likely won’t allow this provision anyway.
Related Reading: Can Your Ex Stop the Kids From Playing Sports?
When Is It the Right Choice?
The right of first refusal is a complex, intricate provision in a child custody agreement. It can be a valuable, useful tool in certain situations. But it can also do more harm than good in others.
Before heading down this path, consider all the possible angles.
Especially as this is a contractual arrangement and a breach can carry significant penalties. In the end, you have to determine whether or not this is truly beneficial to you and your kids.
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