Get Legal Custody Protection With Rights of First Refusal Clause

Updated 04/06/19
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When it comes to your children, the word "battle" can seem harsh—yet that is exactly how legal proceedings around child custody are characterized. Though it does indeed feel like a small-scale war between you and your ex, keep your head up and make sure your child's best interests are at heart. 

Right of first refusal is an issue to consider for any parent going through a divorce. It is a provision in the child custody order that capitalizes on a parent’s time with the children. This is especially important if you are the non-custodial parent, as 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, if your ex-partner's work schedule changes dramatically to overlap with when he or she planned to watch your child(ren), then you would be the first person to call to be the child's guardian on those nights. What commonly happens is that, using this example, your ex may first ask members of that side of the family or set up a daycare before allowing you the opportunity to look after the kids. With a right of first refusal clause, this would be in violation of your custody arrangement. 

Sample Right of First Refusal Language

There is some simple legalese that will help you to understand a right of first refusal clause as your attorney or mediator indicates. This is no replacement for professional aid in drafting a custody agreement, but may give you some helpful base knowledge. Also consider that each state may differ in its recognition of this clause, which could affect the language used in your custody draft. 

"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 (4) hour period of time."

It is important to understand that the right of first refusal applies to both parents, or as the courts will refer to you, both parties. If the child is in your custody, you must give your ex the same consideration. 

Also, the hours of alternate care can be negotiated—common hours used are four, six, or eight hours. The right length of time should make sense for the kinds of responsibilities each parent has—for example, if one parent frequently has 8-hour shifts at work changed on a moment's notice, that should be the length of time in your clause. If they must remain on call that may draw them away from watching the children for just four hours at a time, that should be the desired length of time in your final agreement.

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 could go on. Essentially, a right of first refusal makes it impossible for one parent to leave in the care of anyone without first giving the other parent the option of keeping the child. You can play with the specific circumstances as you discuss with your ex and your attorney. 

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

A right of first refusal clause is a tool to use for a non-custodial parent to make sure the terms of their custody arrangement are honored. There is specific legal recourse when this particular clause is not abided, and will make a case easy for a judge to find in your favor. 

Keep in mind that you and your ex are the parents of your child or children. Though extended family is important in their lives, they are not considered legal guardians in these scenarios and do not have rights. The same goes for neighbors and family friends, all of whom may attempt to separate you from your child at the behest of your ex. 

The bottom line is that 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. 

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