Texas Divorce and the Right of First Refusal

Potential divorcing parents that come to see me often ask about get a “right of first refusal.” It often seems like a good idea to them. It has been my experience that in practice for many of clients a court ordered “right of first refusal” is often a disaster in practice. In this article, we will discuss what a “right of first refusal” is and why you may want to be cautious when asking for one.

What exactly is the Right of First Refusal?

The way a “right of first refusal” (ROFR) is generally a mutual agreement and the way it is supposed to work is that is a parent in possession of the children and who is going to be away from the children for a certain extended period of time must notify the other parent and offer them the chance to have possession of the children for that period of time.

The idea is to allow the parent not in possession of the children the ability to have the children as opposed to the other parent having a nonparent watch the children.

Why would I want a Right of first Refusal?

As mentioned above the idea is to give parents more time with their children. For the best chance of a “right of first refusal” to work it is a good idea that the parents involved:

  1. Have good communication with each other
  2. Be willing to work with each other and cooperate
  3. Live close to each other

Who should not consider a Right of First Refusal?

It is generally not a good idea for parents to have a “right of first refusal” when:

  1. There is a history of domestic violence between the parties
  2. If there is parent who has supervised visitation
  3. If the parents do not communicate well or at all
  4. If the parents do not live close to each other
  5. If the parents are antagonistic and will nitpick every little thing

How do I get a Right of First Refusal?

Most of the time in Texas a “right of first refusal” is agreed upon and then drafted into final order involving children. There are no Texas specific laws found in the Texas Family Code. Should the case go to trial there is a decreased likelihood of being able to obtain a ROFR.

Judges generally do not like deviate from Standard Possession Orders which under the Texas Family Code are presumed to be in the best interest of the child.

Negotiating a Right of First Refusal

There are many different variations of the “right of first refusal” it is really a matter of whatever the parties negotiate. In negotiating the terms of a possession order, many parents want a right of first refusal to be in effect anytime a parent is not able to be in possession of the child.

It is important to think about the long-term consequences on both parents when drafting a “right of first refusal. Some things to consider include:

  1. What minimum amount of time should the custodial parent be unavailable before a right of first refusal applies?
  2. Maybe instead of a short period of time it makes sense to have this be when a parent is away for at least eight hours or more or overnight.
  3. To use specific language and to define things such as “overnight.” For example, give it a time frame such as from 10:00 p.m. until 8:00 a.m.
  4. If specificity is not used, then a court may find that it cannot enforce this provision because it is too vague.
  5. A ROFR can be used to prying into the other parents life. For example questions about where the parent is going out with whom etc.
  6. Is work related childcare included in the right of first refusal?
  7. What about family members?

Reasons to be Cautious of Right of First Refusal

Some reasons to be careful about agreeing to a right of first refusal include:

  1. It interferes with other relations. For example it may mean no one but a parent can watch the children or spend time with the children unless you are there also. If this not the intention then you may want add exceptions to include possible new significant others, family members, or friends.
  2. What about sleepovers for friends? A ROFR may mean your child never can have a sleepover.
  3. A ROFR may make sense when your child is younger but what about when they are older or driving?
  4. A ROFR refusal could interfere with children being able to attend summer camp.

For these reasons and more it is important consider whether or not the potential benefits of a “right of first refusal” out way the possible downsides to your day to day life.


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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are active at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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