The “first right of refusal” in custody cases, also referred to as the right of first refusal, refers to a specific type of stipulation in a child custody arrangement. A first right of refusal clause requires a parent who is unable to care for their child during their scheduled parenting time to first offer the other parent the opportunity and ability to temporarily care for their child before making other arrangements.
This article dives deep into first right of refusal provisions in the context of child custody cases. It explains what first right of refusal clauses are, how they work, their advantages and disadvantages and limitations you may want to consider including before finalizing your custody arrangement.
Understanding the first right of refusal in custody cases
The first right of refusal is an important right in the context of child custody cases. Essentially, if one parent is unable to fulfill their regularly scheduled parenting time due to unanticipated work commitments, illness or other reasons, they can’t simply hire a babysitter or leave the child with a friend or family member. Instead, they must first contact the other parent to give them the opportunity to care for the child. Only if the other parent can’t watch the child may the first parent then seek alternative arrangements.
Notably, a first right of refusal isn’t an automatic right in every child custody case. Instead, the parties must agree to include such a clause in their custody agreement, or one or both parties must make a request to the court to add such a term to the final custody order.
How it works: Right of first refusal custody example
Let’s say that Parent A and Parent B are divorced and share joint custody of their child. As part of their custody agreement, they included a right of first refusal provision. It states that if either parent is unable to care for their child during their scheduled parenting time for a period of four or more consecutive hours, they must first offer the other parent the opportunity to care for the child prior to making alternative childcare arrangements.
One weekend, Parent A is scheduled to have parenting time with their child. However, they receive a last-minute work assignment that requires them to travel out of town for the entire weekend. Under the right of first refusal provision, Parent A must contact Parent B and offer them the opportunity to care for their child while Parent A is away.
If Parent B agrees, they’ll care for their child until Parent A returns. However, if Parent B has prior commitments and declines, Parent A may then make alternative arrangements. This could include having a trusted family member or babysitter care for their child for the weekend.
Now say Parent A has to pick up an unanticipated two-hour shift for work during that weekend. The right of first refusal provision in their custody arrangement applies only to periods of time exceeding four hours. So in this situation, Parent A isn’t required to contact Parent B before seeking alternative arrangements.
Advantages and disadvantages of right of first refusal in custody arrangements
There are upsides and downsides to weigh when determining if you should include a first right of refusal clause in your custody agreement.
Advantages
Possible advantages of agreeing on a first right of refusal clause may include:
- Promotes shared parenting, cooperation and open communication between parents regarding their availability and childcare needs
- Reduces conflict and disagreements by establishing clear guidelines for sharing caregiving responsibilities
- Helps maintain consistency and stability in the child’s life by ensuring that they’re cared for by a parent, where possible
Disadvantages of right of first refusal clauses in custody arrangements
Although there are advantages of first right of refusal clauses, there are also disadvantages that may arise in certain situations. Examples include:
- Potential for disagreements or misunderstandings where the terms of the right of first refusal provision are vague or unclear
- Logistical challenges in coordinating and managing schedules to accommodate a parent’s request to cover childcare on short notice
- May require additional communication and interaction between parents who otherwise might prefer to limit contact with each other
- Potential for conflict if one parent feels that the other isn’t honoring the right of first refusal clause
Potential limitations to incorporate into your first right of refusal custody clause
If you choose to include a first right of refusal clause in your custody agreement, you may wish to consider adding certain limitations. Doing so may help reduce conflict and ensure that the clause is clear, practical and effective for the parents moving forward.
Below are some potential limitations you may want to incorporate:
- Time limitations: Specifying a minimum duration of unavailability before a first right of refusal must be provided to the other parent may help prevent the clause from being used for short absences where alternative childcare arrangements may be more convenient.
- Notification requirements: Including a notification requirement may help ensure that the party making the request for childcare coverage has sufficient time to make alternative arrangements if the other parent is also unavailable. It may also ensure that the other parent has prompt and reasonable notice to cover childcare if they’re available.
- Emergency situations: Some arrangements may specify that the first right of refusal doesn’t apply in certain emergency situations that would require immediate childcare where following the first right of refusal would be impractical.
- Designated third-party caregivers: Consider specifying if there are certain caregivers you may elect to use without offering the right of first refusal. For example, you might want to specify that you don’t need to offer the right if a stepparent or grandparent is available to provide care.
- Frequency limitations: Including limitations on the frequency with which a parent may use the right of first refusal in a given time period may help prevent disruptions in parenting schedules caused by the clause being abused or used excessively.
State law considerations
Most states follow the “best interest of the child” standard when it comes to child custody matters. Under this standard, a court will only include a first right of refusal clause in a custody order if it determines that doing so would be in the best interest of the child.
However, state law varies with respect to what may be included in right of first refusal provisions and the enforceability and interpretation of such provisions. You better understand your state law, you may wish to discuss your right of first refusal custody matter with a licensed attorney in your state.
How an attorney may help
An experienced attorney may help you draft and negotiate the terms of your first right of refusal clause with your child’s other parent. They can also argue your request for such a provision in court if you and your spouse are unable to mutually agree on one. And they can help you enforce such a provision if your child’s other parent refuses to comply with the terms of an existing arrangement.
