Right of First Refusal: Good or Bad?

Posted on Monday, August 8th, 2016 by Marc Beyer and is filed under Child Custody,  Divorce.

It is not uncommon to see a “right of first refusal” clause in the custody and parenting time provisions of a divorce decree.  It simply means that if a parent is not available to be with the children for a period of time during their regular parenting time, then the other parent is given the first opportunity to care for the children before a third party is asked to provide care.

Until recently, I had not given much thought as to whether or not it is wise to include these clauses in a divorce decree.  In many ways, it is hard to argue with them.  Assuming it is reciprocal, it only makes sense that the other parent should be given the chance to be with the children before, say, a babysitter.  What could be wrong with memorializing such a provision in writing?

But, think of it this way.  If one or both spouses are asking that such language be included in a divorce decree, it’s probably because they fear that if it’s not in there, they’re not going to get it.  That also probably means that they have a lack of trust and a high-conflict relationship.  And, by adding a right of first refusal clause to their divorce decree, they have unwittingly given themselves more things to communicate (i.e. argue) about.  It invites prying into each other’s personal and professional lives, and conflict about whether a parent is truly available during their parenting time or not.

In low-conflict relationships (yes, they are possible following divorce), allowing for the right of first refusal is automatic.  The parties offer it to each other without even thinking about it.  It does not need to be in a Court Order for the parents to provide it.  Almost by definition, then, if a divorce decree has a right of first refusal clause, a high level of conflict is involved.

So, my advice is to avoid right of first refusal clauses in your divorce decree.  If you have some level of trust in your ex-spouse, you don’t need it anyway.  You’ll get it.  And if you feel like you do need it, be careful what you wish for, because you are only asking for more conflict.

Here’s something novel: When you aren’t available for the kids during your parenting time, try asking the other parent if he/she wants to take them.  Doing so might actually build some trust and good will, and that can only benefit the kids.  And who knows, maybe your ex-spouse will even do the same in return?

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