The Right of First Refusal

The right of first refusal is a common provision found in most, if not all, divorce decrees or parenting plans.  Divorced parents should understand the meaning of these provisions and properly follow them.

What is the Right of First Refusal?

The right of first refusal gives the non-custodial parent a preference in caring for the children. This occurs when the custodial parent cannot provide care for the children during his or her parenting time. The provision will dictate how long the custodial parent will need to be unavailable before the custodial parent needs to offer time to the non-custodial parent, usually two to three hours. The parent who has received the additional time has no obligation to exercise it. The court typically requires the parent exercising the right to pay and arrange for the transportation of the children.

How does the Right of First Refusal Work?

For example, imagine that the parents of three children get divorced. In the decree, the mother receives primary physical custody of the children and the father receives reasonable parenting time. The right of first refusal in the decree provides that in the event that one parent is unable to watch the children for two or more hours during his or her parenting time, that parent must offer the other parent the opportunity to be with the children.

If the mother will be away from the home and children for two hours one evening, the mother needs to offer the father the opportunity to watch the children during that time before she can have another family member or babysitter watch the children. Should the father decides not to exercise the right, the mother is free to find another babysitter.  She can also ask a family member to watch the children while she is gone. If the mother will be gone less than two hours, she does not need to offer that time to the father. If the father exercises the right, he will need to pick up the children from the mother.

Why is the Right of First Refusal Important?

The right of first refusal serves two purposes. The first and most important purpose is to allow the non-custodial parent additional time with his or her children. The law recognizes that a parent’s role with his or her children is superior to all other parties. If a parent can spend additional time with his or her children, then that parent should have that time.  The children should have time with their parents instead of a babysitter or another family member.  The second purpose of a right of first refusal is to help the parties save money and avoid additional childcare expenses.

It is critical that a custodial parent offer the non-custodial parent additional parenting time under the right of first refusal. A custodial parent who refuses to offer the other parent additional parenting time according to the right of first refusal can find themselves before a judge and answering for his or her noncompliance.