Right of First Refusal in Child Custody Cases

right of first refusal

Biological parents are the most influential figures in a child’s life. The valuable time a kid spends with each of their parents usually helps shape their personalities and gives them the first impression of what it means to have a family in life.

If child safety issues do not come into play, it is so valuable for kids to spend time with both parents as often as possible.

However, things do not always work according to our plans. With time, the marriage may no longer be viable, and divorce or legal separation becomes inevitable.

With strong conflicts and disagreements pitting one parent against the other, the time each parent spends with the child is significantly affected, which in turn impacts the parent-child relationship.

Unfortunately, when designing a child custody agreement during a divorce, the time allocated to each parent is not always in black and white.

That is why some divorce attorneys will insist on including clauses such as the right of first refusal in a child custody agreement.

So, what is the right of first refusal, and how does it impact the child’s well-being? Read on to find out everything you need to know.

What Is the Right of First Refusal?

Right of first refusal is a long name for a very simple concept: parent care is better than non-parent care. If the custodial parent cannot watch over the child, he/she must offer care to the other parent before turning to third parties.

If your ex-partner is not going to be there for the child, you will always have the first shot at being there.

Before he/she contacts a daycare, babysitter, or any other childcare option, they must first offer you the opportunity to be with the child during the time they will be away.

The provision allows the non-custodial parent to capitalize on certain opportunities that may come up to spend more time with their child.

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The right of first refusal applies to both pre-planned and last-minute situations.

For instance, whether custodial parent plans for a weekend out with his/her friends three months in advance or one day before the event, he/she must offer the other parent the option to be with the kid for the time they will be away before settling for other childcare arrangements.

If the non-custodial parent declines to be with the kid (s) during this time, the other parent can go ahead and contact a third party such as a family friend, babysitter or daycare.

What Are the Benefits of the Right of First Refusal?

Many divorcing spouses usually fear that they will not have enough quality time with their children because they will be sharing parenting time with the other parent.

The time demands for work, school, and other day-to-day activities may also limit the amount of time one parent may have available to spend with his/her kid(s).

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Since most parents want more time to spend with their kids without appearing as if they are begging it from the custodial parent, the right of first refusal provision provides a win-win situation to an otherwise complicated matter.

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The non-custodial parent wins because he/she will have an automatic opportunity to routinely spend more time with the child, while the child wins because their primary care will always be entrusted to their parent before relying on a third party.

Potential Problems that Could Result from the Right of First Refusal

The inclusion of  the right to first refusal in a child custody agreement does not mean that things will always be smooth.

In fact, in some circumstances where both parents are cooperative and well-intentioned, the right to first refusal can become a major issue, especially when it is included as a mandatory obligation in a custody agreement.

Below are some of the issues that may result from a mandatory right of first refusal provision in a child custody agreement:

  1. Such a provision can restrict a parent’s ability to promote a normal and healthy relationship between the kid and his/her grandparents and other family members.
  2. What happens when there is a change of plans at the last minute? What happens when the custodial parent who was expected to be out of town cancels the travel plans? Does the non-custodial parent still have the right to take the kid away?
  3. It can also create thorny interpretation issues. What if the custodial parent has remarried or is in a long-term relationship and the kid is on good terms with the parent’s partner, and he/she is available to watch over the kid in the absence of the custodial parent? Does the right of the first refusal still apply?

How Can You Avoid Conflicts in Right of First Refusal?

The primary purpose of the right of first refusal is to help kids spend more time with each parent. However, conflicts and disagreements can come along the way, making things quite complicated.

To minimize tensions and friction along the way, the parents should keep each other informed about any set or even tentative plans that may call for changes to be made in the normal co-parenting schedule. Providing as much notice as possible will play a critical role in minimizing friction.

right of first refusal

Besides ample notice, the custodial parent must also provide the other parent with explicit details about any requested change in normal parenting time to make the right of first refusal work smoothly.

This might mean sending text messages or emails explaining the proposed change in the normal co-parenting schedule. Sometimes, you may be forced to call just to make sure your communication with the other parent is fluid, and everyone is at ease.

Is the Right of First Refusal the Right Choice for You?

The right of first refusal may sound simple, but it is a complex and intricate provision in any child custody agreement. While it may be a useful tool in certain situations, it can also do more harm than good in other circumstances.

Therefore, before you decide to include it in your agreement, consider all the possible angles with your divorce attorney.

Keep in mind that this provision is like a contractual agreement, and any breach can lead to significant penalties. In the end, it is upon the two of you to decide whether it is good for your kids.

Legal Support in the Right of First Refusal Provision

Issues surrounding child custody agreements can be quite complicated during a divorce. You need an experienced divorce lawyer who will hold your hand and guide you through every legal step taken.

At Legal Giant, we fully understand what you are going through, and our team of experienced family attorneys is here to help you. Contact us today to set up a free, no-obligation review of your situation.

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