First Right of Refusal in Child Custody Cases

Father holds his sons hand while walking him to school

Parents are the most influential figures in the lives of their children. The time that a child spends with each of their parents helps to shape their personalities and gives them their first impression of what it means to be part of a family. As long as issues surrounding safety come into play, it is so valuable for children to spend quality time with both parents as often as possible.

While it sounds simple, divorced or separated parenting situations can make this more difficult in practice. Conflict and strong disagreements that pit one parent against the other can impact the time that each parent spends with their child and, in turn, affect parent-child relationships.

How to allocate parenting time in shared parenting situations is not always laid out in black-and-white, but the right of first refusal can help make this easier. Having a child custody agreement that includes a provision such as the right of first refusal can help to manage the time that kids spend with each parent.

Defining Right of First Refusal

Right of first refusal in child custody situations commonly means that one parent must first offer the other parent the opportunity to look after their children before contacting a babysitter or another family member to care for the kids. It is a clause that is frequently included in child custody agreements to help parents navigate parenting time exchanges.

Right of first refusal typically applies to both planned and last minute situations. For instance, if a parent makes plans for a night out with friends two months or even two days before the actual event, they must offer the other parent the option to care for their children before making any other arrangements. If the other parent decides not to take the kids during this time, then a third-party caretaker such as a friend, babysitter, or another family member may be asked to care for the children instead. Right of first refusal may also apply to situations such as doctor’s appointments, vacations, after-school daycare, and many other instances. 

Advantages and Disadvantages

While not only helping to guide parents in managing custody, right of first refusal helps each parent to have as much time as possible with their children. It also encourages flexibility if parents can call upon one another for parenting time exchanges, and it supports communication between parents so they are both better informed about who will care for their children if neither of them can. 

While a right of first refusal clause can prove to be a great benefit to parents, it's not without its potential pitfalls. Parents who already struggle to communicate may find it difficult to request parenting time changes between one another. Moreover, the way in which parents communicate these requests can affect how successful they are. A long email or vague text message might not be a sufficient method of handling parenting time exchange requests, especially if that kind of communication isn't working well across the board.

Avoiding Conflict in Right of First Refusal

Right of first refusal does encourage kids spending more time with each parent, but conflict can make it very hard for parents to plan these exchanges. Whenever possible, it is best for co-parents to keep each other informed about any set or tentative plans that call for adjustments to be made to the family’s normal parenting schedule. Providing as much notice as possible can help reduce friction. Along with ample notice, giving explicit details about the requested change in parenting time is key to making right of first refusal work. For some, this may mean that sending an email or text message to handle the schedule change won't be the most effective of methods.

When communication between parents is more fluid, stress is reduced for every family member, kids included. To help encourage that fluidity, using communication tools like the Trade/Swap function on the OurFamilyWizard Calendar can prove to be extremely helpful.

Requesting changes in a parenting schedule on a custody calendar

Integrated into the OFW Calendar, the Trade/Swap tool facilitates brief and clear information exchanges that can help parents in handling right of first refusal requests. Using this tool, the parent making the request will input the date(s) over which they'd like to offer time to the other parent. They can also input an expiration date for the offer, cueing the other parent to respond to the request before that date.

The parent responding to the request will simply approve or refuse the offer. If the offer is refused, they will have the opportunity to create a counteroffer if flexibility is an option in the original proposal. Having an unambiguous response to these request gives the parent who made the request peace of mind knowing that arrangements are agreed upon for their child, or it provides this parent with the time to make other arrangements such as hire a babysitter. 

Including a right of first refusal clause in a parenting agreement can have significant advantages as well as its complications. By committing to clear communication and direct responses, right of first refusal can prove to be a great way to help children spend time with both parents.