Understanding ‘right of first refusal’ in a custody case

| Feb 12, 2021 | Family |

Even if you and your soon-to-be-ex-spouse have agreed to share custody of your children, you’re concerned that you won’t get as much parenting time as you’d like. You’re particularly concerned about the idea that your child may end up in third-party care quite frequently during your ex-spouse’s parenting time because of your ex’s unpredictable work schedule.

A “right of first refusal” provision in your parenting plan could be a viable solution to your concerns. By having the right of first refusal, your co-parent is required to contact you and give you the opportunity to care for your child before they call another family member, friend, significant other, neighbor, babysitter or any other care provider.

What kind of specifications should you include?

Depending on how you set up the provision, the right of first refusal can apply to everything from your co-parent having to work a few hours late to going away for the day or longer during their custody time. If you and your co-parent live close to one another, you may want to establish that any time away from the kids requires notification. If you live an hour or more away, it’s probably more practical to limit it to times when your co-parent has to be away for at least a half-day or longer.

Unfortunately, some parents find ways of getting out of using the provision, like saying they didn’t find out they had to work late until the last minute and then couldn’t reach their co-parent. You may want to require that your co-parent notify you within a certain period of time after they learn of the need for child care and via a specific method (such as text messages or email). 

Your co-parent will likely request reciprocal rights, which is only fair. However, it’s always wise to get as many things codified as possible while you’re negotiating your divorce and custody agreements. This can help prevent misunderstandings and conflicts later.