What is the “right of first refusal” in custody agreements?

Many parents who share custody of their children after divorce put a “right of first refusal” (sometimes called a “first right of refusal”) in their custody agreement. Generally, this is reciprocal. 

It requires each parent to notify the other if they’ll be unable to take care of their child for a while during their parenting time before making other childcare arrangements. This gives the other parent a chance to spend additional time with their child if they’re able to step in.

There are often times when a parent has to work late or take an unexpected shift, handle an emergency with an elderly family member or any number of situations that require a caregiver for their child for a few hours or longer.

In addition to allowing parents to spend more time with their child, a right of first refusal provision can cut down on the number of third parties involved in caring for your child. This can be particularly important if you have in-laws you believe aren’t the best influence or your co-parent doesn’t make the most informed decisions about babysitters.

What should the provision specify?

You should provide some detail in this provision. For example:

• How long do you have to plan to be away before you are required to call your ex? (For example, an hour or two may not be worthwhile.)
• How much notice do you need to give them (if possible)?
• Will you communicate via text, phone or email? (Choose something you both check regularly.)
• Will you be required to make up the time? (For example, if your child ends up spending the night with your ex, will you get an extra night added to your time?)
• Who will be responsible for transporting your child back and forth?

These provisions often aren’t easy to enforce. You likely won’t know every time your co-parent drops your child at their parents’ house because they have to deal with something at work on a Saturday morning. However, it’s a good idea to have it in writing so that you’re both clear on the expectations.

Remember that this kind of provision in your custody agreement will require some added interaction between the two of you. If you’re not at the point where you can do this amicably, it may be best not to try. Having experienced legal guidance can help you find the right solution for your family.