Is the “Right of First Refusal” a Good Idea for
Child Custody Agreements?
by Michael Osburn, Esq.

What is the “Right of First Refusal”?

During the negotiation of a child custody agreement, a parent will sometimes ask whether he/she can have the “right of first refusal.” The idea is that if one parent is unable to care for the child during his/her designated custodial period, the other parent must be given the opportunity to care for the child before entrusting the child to the care of a third party.

The Benefits of the “Right of First Refusal”.

Many divorcing and separating parents fear that they will not have enough quality time with their child because they will be sharing time with the other parent. The time demands of work, school and other day to day activities also limit the amount of time a parent will have available to spend with his/her child. Therefore, including the “Right of First Refusal” in a custody agreement seems like an easy way to provide extra parenting time.

Most parents provide excellent care for their children. After all, who cares more about a child’s welfare and safety than the child’s own mother and father? Thus, the “Right of First Refusal” seems like a win/win provision to include in any custody agreement. The parents win because they will have the opportunity to routinely spend more time with their children. The children win because their care will be entrusted to their parents before relying on a third party.

What Possible Problems Could Result from the “Right of First Refusal”?

In the abstract, the “Right of First Refusal” seems like a straight forward and simple concept. However, even in cases where both parents are cooperative and well intentioned, this concept can easily become troublesome when it is fashioned as a mandatory obligation in a custody agreement. Examples of the problems which can result from a mandatory “Right of First Refusal” are outlined below:

1. It can unduly restrict a parent’s ability to promote healthy, normal relationships between the child and his/her grandparents and other family members.

2. It can create distrust and conflict between parents. “Did she really try to reach me to see if I was available before she let a teenager babysit my child for five hours on Saturday?” Or, “She waited until the last minute to ask me. Why didn’t she ask a week in advance so I would have adequate time to switch my schedule around?” Or, “I didn’t make any other babysitting plans because the mother said she would watch our child and then she cancelled at the last minute. I would have made other, more reliable arrangements but I relied on her. Now I’m stuck.”
3. It can create thorny interpretation problems. What if a parent has remarried or is in a long term relationship? If the parent’s spouse/partner is available to watch the child during the parent’s absence, does the “Right of First Refusal” apply?

4. What happens when plans change at the last minute? What happens when the parent who expected to be out of town for the weekend on business finds that the trip has been canceled? Does the other parent still have a right to have the child for the weekend?

Can the “Right of First Refusal” Adversely Impact the Child?

As outlined above, a mandatory “Right of First Refusal” in a custody agreement can create distrust and conflict even between cooperative and well intentioned parents. The likelihood of conflict and problems between parents rises to almost 100 percent if one or both of the parents is not cooperative or well intentioned. Parental conflict is never good for the child.

A mandatory “Right of First Refusal” can also lead to the breakdown in open communication between a parent and his/her child about what occurs during the other parent’s scheduled custodial periods. This breakdown can occur as result of one parent overtly instructing the child to “keep quiet”. A parent who has breached the “Right of First Refusal” by allowing a third party to watch the child without checking with the other parent first, might tell the child to “keep quiet so daddy/mommy does not get into trouble.” The breakdown in communication can also occur more indirectly. If a child innocently discloses that she spent the weekend with “Aunt Susie”, and then finds out that this caused an argument between her parents, the child might quite understandably conclude that it’s best to keep her mouth shut and not talk about what happens during the other parent’s custodial periods. In general, this sort of shut down in open communication between the child and her parents is not in the child’s best interest.

Are there any Alternatives to the “Right of First Refusal”?

Parents can offer the other parent the opportunity to spend extra time with the child before relying upon a third party–even when they are not legally required to do so. A mandatory “Right of First Refusal” is not needed in a custody agreement for parents to work cooperatively on child care arrangements.

Informal cooperation on child care arrangements is most likely to succeed if both parents follows the “Golden Rule”, that is, treating the other parent the way he/she would like to be treated himself/herself. If both parents make a good faith effort to contact the other parent before making third party care arrangements, then the arrangement is likely to be successful. If only one party makes an attempt, then the process is not likely to succeed. However, the lack of success will not result in a party being subjected to a motion for contempt. It simply means that each parent will be free to make whatever reasonable child care arrangements he or she desires during his/her custodial periods.