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What is ‘right of first refusal’ in custody agreements?

On Behalf of | Dec 23, 2020 | Child Custody

Whether you and your soon-to-be ex are going to be sharing custody of your children fairly equally or one of you will have primary custody of them, you may want to include a “right of first refusal” in your custody agreement.

Basically, if you have the right of first refusal, it means that your co-parent has to give you the option of taking care of the children if they need to find a caregiver for them during their custody time.

For example, say that your co-parent needs to work late one night. If you have right of first refusal, they need to ask you if you’re available and willing to care for the kids before they can call a babysitter, friend or family member.

Why seek right of first refusal?

Often, a right of first refusal clause will apply to both parents. Many divorced parents want as much time with their kids as possible, and this can help them get that.

If you’re concerned about your children being left with your ex’s significant other or friends, family or acquaintances, it can be a good provision to have. If you’d prefer your child not have to spend so much time with a babysitter or in a day care facility, here’s your chance to take over more of the care yourself – if you’re able to.

Can you and your co-parent deal with the added communication?

Remember that if you and/or your co-parent have right of first refusal, it will mean more communication between you and more planning and logistics for exchanging the children. If you’re not yet at a point where you feel you can do that amicably, this may be worse for the kids than having to spend time with another caregiver.

If you’re seeking the right of first refusal, either as you draw up your custody agreement or as a modification to your current plan, consider whether you have the time (or can you rearrange your schedule) to care for the kids if your co-parent calls you. Are you and your co-parent going to be able to coordinate these additional visits without problems?

These are just a couple of things to consider. Your family law attorney can help you as you make a decision and also help you work toward the custody agreement you believe is best for your children.