What Is The “Right Of First Refusal” In Family Law?

 

Parenting time is one of the most crucial issues for separating or divorcing couples. Quite often, parents try to reach a compromise and outline the parenting time each of them spends with a child in a separation agreement. Alternatively, parenting time can be set out by way of a court order.

Still, no agreement or court order can foresee all changes we encounter in our life schedules from time to time. People get sick, work schedules change, and accidents happen. Alternatively, people need changes in their routine once in a while. In short, there will always be times when the parent who is to have parenting time with the child according to an agreement of a court order cannot care for the child at a given moment.

Some parents can handle such situations easily. If one of them is not available, they can agree that the other parent, another family member, or a babysitter will accommodate the child. Still, strong disagreements between separated or divorced parents are not uncommon. Some parents would instead engage a caregiver than give additional parenting time to the other parent. As a result, the child loses valuable time with the parent who is ready to help. Also, both parents will share the childcare costs most of the time, which may be unfair to the parent who was eager to accommodate the child.

Disputes over parenting time beyond the regular schedule negatively impact parents, children, and the parent-child relationship in general. A potential solution to this is to include the right of first refusal into your separation agreement or court order.

What is the right of first refusal in family law?

The right of first refusal in shared custody arrangements and family law usually means that if a parent cannot accommodate the child during his or her ordinary parenting schedule, the parent should offer the other parent to spend this time with the child before making alternate arrangements.

Suppose parents share parenting time on a week-on/week-off basis and have the first refusal clause in their parenting agreement. Suppose this is the mom’s parenting week, but she cannot care for the child due to a family emergency. The mother shall offer the father to spend this time with the child in her absence before she can ask a babysitter or a family member. The mom can make alternative childcare arrangements only if the dad cannot take the child.

Pros of the right of first refusal

Ideally, the right of first refusal benefits both the parents and the child. It ensures that parents and children maximize their time together. It helps parents avoid disputes over childcare arrangements and save on babysitting costs. If each parent can shoulder the other, it gives more flexibility and improves their relationships, which eventually benefits the child.

Cons of the first right of refusal

Unfortunately, the right of first refusal can be disruptive. Suppose the father needs to go out for a couple of hours during his parenting time, and he has a family member in his household who can look after the child. In this case, it may be easier for the father to leave this child with the family member instead of making arrangements with the mother.

The right of first refusal can escalate conflicts between parents. Suppose the parents do no communicate efficiently, and each request is yet another ground for a battle.

Alternatively, discords may arise when the parents meet for extra pick-ups/drop-offs. Also, some parents misuse the right of first refusal and would take the children even though they do not care for them. As a result, the children may lose valuable time with a grandparent or another family member.

To maximize the benefits of the right of first refusal, parents need to keep each other informed about potential changes in their schedule and give as much notice and details as possible.

How much is enough?

There is no strict rule or language for the right of first refusal. The arrangement is always case-specific. Ideally, it should recognize the autonomy of the parties and the needs of the child. Some parents apply the right of first refusal only in certain instances. An agreement can provide that the right of first refusal only applies if the absence of a parent exceeds a certain amount of time. For example, suppose parents agreed to trigger the right of first refusal only if one cannot care for the child for 3 hours or longer. In that case, he or she does not need to offer this time to the other parent in case of shorter absences). Other parents apply it only to emergencies, as opposed to planned absences (such as vacation). Alternatively, parents can choose that the right of first refusal will work on certain days (such as weekends).

If the parents cannot agree on the right of first refusal clause, they can seek assistance from the family court. The law considers the right of first refusal in light of two main principles: the child’s best interests and maximizing each parent’s contact with the child. The judge will approach the first refusal clause on a case-by-case basis, considering the needs of a specific child and the means of his or her parents.