The Importance of the Right to First Refusal


  • The clause states that the custodial parent has to seek the noncustodial parent out when they cannot be present for the child.
  • The clause is not present in every child custody agreement and must be put in there, in order for it to apply.
  • Stepparents and significant others can often cause problems in right to first refusal custody exchanges.
shared parenting

"Children do not benefit from being the rope in constant game of tug of war."

When designing a child custody agreement during a divorce, many important factors go into creating an accord that would satisfy both parents. Much of the focus is placed on who has primary custody and the child custody scheduling, that there is another important clause that needs to be placed in any drafted agreement: the right of first refusal.

What is it?

The right of first refusal is a clause that states that the custodial parent has to offer parenting time to the noncustodial parent any time the custodial parent cannot watch the children, rather than seeking a babysitter first, according to Avvo. It is a clause that parents have to put into their custodial agreement, which can create tension between co-parents when ironing out the agreement.

Having the right of first refusal in the agreement gives guidance to the custody schedule and allows for flexible parenting time. If the custodial parent knows that they’ll be at work or they’ll be out at specific times during the course of a week and the noncustodial parent is free during those times, they can use this clause to rely on the noncustodial parent to watch the children. The noncustodial parent is given extra time to spend with their children, and the custodial parent gets to do what they need to do.

Fighting for it

However, this clause is not always considered to be a good aspect of the custody agreement. It can be something to be fought for if the custodial parent does not trust that the noncustodial parent can be reliable and provide a safe and nurturing environment during their parenting time with the children. Without a consensus from both parents, the right of first refusal does not apply.

In order to include the right to refusal after a custody agreement is already ironed out, it would require modification through the court, where a request for the right of first refusal can be asked for. The noncustodial parent would have to prove the benefit of them having the right of first refusal added to the custody agreement.

There is a philosophical side to this situation, as well. If the custodial parent is making plans for themselves, but unwilling to grant the noncustodial parent time with their children, outside of allotted parenting time scheduled by the custody agreement, then the custodial parent is not only hurting their ex-spouse and co-parent, but they are hurting their children, as well. Their children are losing out on time with their parent, and unnecessary tension and animosity is being fostered within the familial dynamics.

Outside perspective

Individuals outside of the custody agreement can often cause discord within the co-parenting relationship and challenge aspects of the right of first refusal. In some instances, stepparents of the children or significant others’ of the parents can get involved and cause problems with the right of first refusal. If the parent is in the hospital or out of reach and unable to make the custodial transfer decision, the stepparent does not have legal authority to refuse a parent’s right to first refusal, so long as the right to first refusal is clearly stated in their custody agreement.

If they do not have the right to first refusal in those circumstances, they need to review the custody agreement to see if any of the language in it pertains to how custody is affected by medical emergencies or circumstances that fit the current situation.

Much of the right of first refusal is dependent on the length of the absence of the custodial parent. According to Avvo, some courts take the approach that nothing less than a 24 hour right of first refusal will be ordered because anything less than that requires constant contact between the co-parents about where they are going and when they will be back.

Foster relationships

Despite any water under the bridge, it’s important to the children that they foster the best relationship with all parents available. It’s understandable that an ex-spouse would not wish to give any sort of advantage to their ex-spouse, but this does not fit the bill. Children do not benefit from being the rope in constant game of tug of war. This type of behavior does not teach them anything remotely relevant toward building civil, polite, or healthy relationships with others.

The right to first refusal is an act to promote co-parenting and foster parenting time for the noncustodial parent. It’s bad enough that a parent does not get to live with their children, but to fight against details within the custody agreement that promote the noncustodial parent’s relationship with their children is to dismiss your children’s feelings toward their parent.

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