Getting Legal Custody Protection With Rights of First Refusal Clause

Divorce and right of first refusal

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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; your time with your children is already limited, so you want to make sure that the custody order has a right of first refusal clause.

What Is Right of Refusal?

Right of refusal, as related to child custody, is a provision that requires one of the child's parents to grant the child's other parent the right to care for the child when the first parent is absent.

Coverage 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 they 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 in this scenario is that 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. 

Hours of Alternate Care

The hours of alternate care can be negotiated—common hours used are four, eight, or overnight. 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.

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. 

The Importance of Having 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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