When Right of First Refusal Goes Wrong

Stacked rocksAdjusting after a divorce or separation is difficult for everyone involved, and there are many moving parts. A father sits in the forefront of the photo, holding a baby in his lap while the mother sites in the background, looking upset.  You and your former spouse or partner will have to both think about a new budget, a new place to live, and sometimes even a new career.  If you share children with your spouse or partner, you will also have to think hard about what kind of parenting schedule and custody arrangement is best for your child.  The vast majority of cases end with a settlement instead of a contested trial.  Many parents opt to include a “right of first refusal” clause in their parenting schedules, but there are times when a right of first refusal can go wrong.

Right of first refusal in a custody case means that the parent exercising parenting time must first give the other parent a chance to take the child before placing the child in the custody of a third party.  For example, if the party exercising time has to unexpectedly go into work for a few hours, that parent must first offer the other parent the chance to watch the child before calling a babysitter.  This type of arrangement is good in theory, as it provides the child and the parents with the most amount of possibilities to spend time with each other instead of with a babysitter or other third party.  There are times, however, when these clauses do not work to the advantage of either parent.

The most common way a right of first refusal can go wrong is by being too restrictive.  Most of these clauses have a particular cut off time before they spring into effect, such as a parent must offer the other parent the right of first refusal if the parent exercising time will be gone for at least three hours.  If the clause is too restrictive, such as if the parent will be gone for thirty minutes or more, the clause becomes unworkable.  In such a case, the clause could be read to say that the parent exercising time could not even run to the store for milk and leave the child with the new step-parent without first calling the other parent and offering him or her the chance to watch the child for thirty minutes.  Clearly, that is cumbersome and unworkable.  The other way a right of first refusal can go wrong is by it being drafting at the other extreme of the same, i.e. by being too vague.  It is essential that these provisions be specifically specific so the parents understand their rights and responsibilities.  Parents need to include not only a minimum time before the provision comes into effect, but also how long the other parent has to respond to an inquiry.  For example, the clause should say something to the effect that the other parent must respond within thirty minutes of the exercising parent contacting and offering the right of first refusal. Without such a clause, the exercising parent will not know at what point he or she can make alternative arrangements.

We have extensive experience helping our clients craft enforceable parenting schedules that work for their families.  Contact us today at 651-371-9117 and let us help you.