Learn About Your Child Custody Right of First Refusal

You want to spend as much time as possible with your child. So it seems unfair when you are ready and able to be with your child, but your co-parent has scheduled a babysitter instead. This is where a right of first refusal comes into your child custody arrangement. Learn what that means below.

What is a child custody right of first refusal?

You may have encountered a right of first refusal in business or in your work environment. For example if you start a business with a partner, you may have agreed to offer your half to your partner before selling out to a third party. If so, your partner has “a right of first refusal.”

A right of first refusal could be restated as “a right to get the first offer.” But what does that mean when we’re talking about our kids?

If your child custody orders include a right of first refusal, that means co-parents must offer each other the opportunity to be with the children before making other child-care arrangements.

How do I know if I have a right to first refuse an opportunity to care for my child?

In many states, the right of first refusal is not automatic. If this is true in your state, you would only have the right if it’s stated in the documents that control your child visitation rights. But it’s very common for child custody arrangements to include a right of first refusal.

That means the best way to find out is to look at your documents and see if you find this clause. You should look for key phrases, “right of first refusal” or “first right to refuse.” You should also scan for any provisions you have regarding designating responsible third parties to pick up or care for your children. These clauses may include terms that the other parent should be contacted before any third party arrangements are made.

If you don’t see a right of first refusal or any similar arrangements in your documents, don’t give up. Instead, contact your lawyer for a quick chat. You may live in an area where this is automatically provided. If that is the case, you may have a right of first refusal even if it isn’t written in your particular documents. Or, because these orders are often complicated and written in legalese, you may have just missed it.

How does the right of first refusal work?

A right of first refusal is most often triggered when a co-parent is unable to care for the children for several hours on their visitation day. The right often applies to school or extra-curricular activities and doctor’s appointments.

For example, a parent may need to travel for work during a time that she is supposed to have the kids. She will be unable to be with the children for 48 hours. This may trigger the right of first refusal. In that case, she cannot quietly arrange child care. Instead, she must notify her co-parent and allow her co-parent the opportunity to care for the children. If her co-parent refuses, then she can arrange for a third party to care for the children.

It’s less common for the right to be triggered if a parent needs to be away for just a few hours. Your order (or state law, if that is the case) will designate how many hours of absence will trigger the right of first refusal. Yes, it makes sense that the kids should be with a parent instead of a babysitter whenever possible. You can have this arrangement, but you may need to build your co-parenting relationship so that you can foster these agreements. This is a great example of why it’s better for you and for your kids to set aside your differences and co-parent.

Some rights of first refusal also allow co-parents the right to refuse attending school events and other appointments. Again, your documents and/or state’s law will say what applies to your family.

How do I implement the right to refuse child visitation?

The first step is to familiarize yourself with when you are supposed to be with your kids. You need to download Our Days Calendar, the only fully automated child custody calendar. Our online, Apple and android app puts your parenting calendar in the palm of your hand. With ODC, you will know where your kids will be on any given day of the year.

Next, understand what your right is. Does it trigger only when your co-parent will be unable to care for the kids for 48 hours or more? Does it apply to doctor’s appointments? School activities? Finally, it’s time to reach out to your co-parent.

If you are looking to exercise your right of first refusal, approach your co-parent with diplomacy. Avoid accusing your co-parent of wrongdoing. Offer your time to care for the children and allow your co-parent the opportunity to accept your help. If he or she refuses, you can politely refer your co-parent to the portion of your custody arrangement that states your right of first refusal. Remember, co-parents who get along often enjoy more time with their children simply because agreements can be reached more easily.

If your upcoming absence is triggering the right of first refusal, try requesting a switch of visitation days first. A right of first refusal does not require your co-parent to “pay back” the days you’ll have to be away. Again, this is where investments and sacrifices made for your co-parenting relationship really pay off.

In either event, be kind to your co-parent. Babysitters are expensive – you can save money by working with your co-parent. Let’s be real – you’re probably reading this article because you prefer your ex offer you time with the kids instead of booking sitters. But your co-parent is not likely to give you anything that you withhold when the tables are turned.

Whatever your prior history, every right of first refusal is an opportunity to begin a co-parenting relationship that will be more profitable to you and healthier for your children.

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