What is Right of First Refusal During Child Custody?

Do you have a right of first refusal clause in your custody agreement?

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Does your custody order include a right of first refusal clause?


Right of first refusal is an issue that any parent going through a divorce should consider. Right of first refusal is a provision in the child custody order that capitalizes on a parent’s time with his/her children.

This is especially important if you are the non-custodial parent. Your time with your children is already limited. You want to make sure that the custody order has a right of first refusal clause.


What Is Covered Under a Right First Of Refusal Clause?


Basically, a right of first refusal clause means that before a parent can use the services of a daycare, sitter or relative they must give the other parent the option to be with the child. If your ex is not going to be with your child, you want the opportunity to spend that time with the child.

For example, Joyce has a new work schedule that means working 3:00 to 11:00 nightly. Joyce's ex works days and is off during the evening hours. Instead of asking her ex to take the children while she works, Joyce has made the choice to leave the children with her parents in the evenings. 

Jim, Joyce's ex would like the opportunity to spend his evenings with the children while their mother is working. If Jim as a "right of first refusal" clause in the final divorce decree, his ex will not be able to make the decision of who the children stay with while she is working.

Jim would automatically have to be consulted. 


Sample Right of First Refusal Language


Each party shall have the first right of refusal to provide care for the minor child if the
other party finds it necessary to have an alternate caregiver for more than a four (3) hour
period of time.

It is important to understand that the right of first refusal applies to both parents.

If the child is in your custody, you must give your ex the same consideration. Also, the hours of alternate care can be negotiated. 

4 Circumstances Covered Under The Right Of First Refusal?


1. After work daycare; if either parent is available to keep the child while the other works, that parent has the right of first refusal.

2. If a parent has a date, the other parent has the right of first refusal over plans to leave the child with a sitter or third party caregiver.

3. If a child has a doctor’s appointment and the custodial parent is unable to take the child, the non-custodial parent has the right of first refusal.

4. If a parent plans a vacation the other parent has the first right of refusal when it comes to deciding who the child stays with during the parent’s absence.

The list goes on and on. Essentially what right of first refusal does is make it impossible for one parent to leave in the care of anyone without first giving the other parent the option of keeping the child.


Why Is It Important That You Have Right of First Refusal?


Let me give you a real-life example of something that happened to a friend. He and his ex-wife have a 4-year-old daughter. His ex-wife worked a 9-5 job and would leave the daughter with her parents while she worked.

The father worked from his home office and had irregular hours. At least 3 days a week he had free hours during the day he could have spent with his daughter. It would have been possible for him to go to the grandparent's home to pick up his daughter to spend part of the workday with him. Something that would benefit, not only him but his child also.

His ex refused to allow him to pick his daughter up for the extra time and, not only that, the grandparents refused to release the child into his custody when he attempted to pick her up. This father found himself in a very frustrating situation.

Not only did his ex refuse him the extra time with his daughter, her parents, who had no custodial rights, stepped in where they had no legal rights.

If this father had, had a right of first refusal clause in his custody agreement, the wife would have been in contempt of court if she had refused to allow him the extra time during the workday and, her parents would not have had any say over when he was and wasn't with his daughter.


Bottom line, a right of first refusal clause can protect your legal right to be with your child when the child is not in the custody of the other parent. That is quality time a parent can share with their children if they protect the right to do so during the divorce process.