The Right of First Refusal in Child Custody

The term “right of first refusal” is used in different types of agreement, including in child custody agreements between divorced or never-married parents. The right of first refusal is a stipulation that addresses unforeseen or unusual situations that can and do occur outside of the specifics of the co-parenting agreement or the custody order.

While the term itself may seem a bit confusing, once the parents understand how it can be effectively used to prevent conflict in times when situations come up that are outside of the visitation and custody schedule, it becomes a very helpful term.

The Basics of the Right of First Refusal
The co-parenting agreement or the child custody order stipulates the specific days and times that each parent has time with the child or children. If something occurs when Parent A has possession or time with the child or children, the Right of First Refusal requires that Parent A contact Parent B and provide that parent with the opportunity to spend time with the child or children.

In other words, if Parent A has the children and has to work or has an unexpected situation occur, he or she must contact Parent B to allow them to interact with their child or children before calling in a babysitter or a family member to watch the children. Of course, the Right of First Refusal is only practical if both parents are in the same general area, and it is practical for the parents, and the children, to be a part of this type of agreement.

In most cases, the Right of First Refusal clause provides a time limitation. This means that there must be a specific amount of time where Parent A cannot take care of the children before calling Parent B. A good example of this is a parent this is required to work overtime. If Parent A has to work more than X hours overtime, he or she must notify Parent B so they can exercise their time with the children.

A Right of First Refusal clause in the agreement, when drafted by an experienced family lawyer at the Keller Legal Service, will typically provide information on what is to be done with the children if both parents are unavailable at the time. In most cases, the parents will provide the name of a daycare or caregiver that is mutually acceptable and who can supervise and care for the children in these situations.

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