Handling Issues Related to the Right of First Refusal in Texas Family Law Cases

The right of first refusal often poses a puzzling challenge in family law cases, leaving even seasoned attorneys scratching their heads. In essence, it grants the non-custodial parent the opportunity to care for the child if the custodial parent is unable to do so for a designated period. But does the right of first refusal in custody extend to non-parents, like an ex-husband’s girlfriend, for spending time with your child?

How can the right of first refusal in custody impact your child’s time with a nonparent, such as your ex’s girlfriend

Imagine your ex-husband has a scheduled visitation period with your son. It starts at 6:00 p.m. this Friday and concluding at 6:00 p.m. the following Sunday. In the morning on Thursday, he receives a phone call. The call alerts him to the fact that he will need to work this weekend. As your divorce decree includes a right of first refusal clause, he must promptly notify you when he becomes aware of this scheduling conflict and offer you the opportunity to refuse the visitation. You can choose to take possession of your son this weekend despite the divorce decree designating it as your ex-husband’s possession weekend.

We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. In right of first refusal, let’s say you are not able to take custody of your child for a weekend visit and want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday.

Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right? In a custody scenario, can the right of first refusal enable your child to have time with your ex-husband’s girlfriend? 

How is the right of the first refusal defined in your custody orders?

This is the first question that we need to ask ourselves in relation to your particular circumstances. When considering the inclusion of a right of first refusal clause in your child custody orders, you and your attorney need to first define and determine the application of this term within the context of your family. Specifically, you should establish the precise duration of time during which a parent’s absence from the child will activate the right of first refusal.

You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.

Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. 

Prioritizing your child’s comfort

In Texas family law, the right of first refusal in custody can potentially permit your child to spend time with a nonparent, like your ex-husband’s girlfriend. The other issue that we need to discuss, however, is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available.

It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.

How will extracurricular activities be handled?

In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. How can this fundamental disagreement be solved?

Some families have found success by allowing each parent to choose one activity for their child to participate in each school semester. In such cases, the parents would need to determine how to divide the costs associated with these activities. Any additional activities, such as camps or classes, would typically be the financial responsibility of the parent who selected them. Decisions regarding transportation to and from these activities should also be addressed. If both you and your ex-spouse have comparable incomes, you might opt to split the costs equally. Otherwise, a proportionate split may be more appropriate.

Another issue that may warrant discussion for your family is whether both parents can attend practices or rehearsals. If both you and the other parent can be in each other’s presence without conflict, this won’t be an issue. However, if you’ve demonstrated an inability to be in close proximity without conflict, you may need to restrict attendance to the parent who funded the camp or activity. 

How do you get reimbursed for uninsured medical costs?

In a typical child custody order, one parent usually has the responsibility to provide health insurance coverage for the child. This insurance can come from various sources such as employer-provided plans, private marketplace plans, Obamacare, or Medicaid. It’s crucial to ensure that your child has adequate coverage. One of you will cover the insurance costs or reimburse the parent who pays for the medical coverage.

However, insurance doesn’t cover every medical expense your child might incur. These expenses fall under the category of uninsured medical costs. For example, if you bring your child to a pediatrician and the doctor orders a test that insurance doesn’t cover, this expense would classify as an uninsured medical cost. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).

I advise clients to negotiate the inclusion of a deadline for submitting medical bills for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.

If you, as the primary conservator of your child, are deployed overseas as a military member, you can choose an adult to exercise your possession and conservatorship rights while you are abroad.

The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child. However, you could allow him or her to act in that capacity. This is as long as you are overseas and unable to do so yourself. If temporarily assigning these rights to the other parent is not in the best interests of your child, you may select a nonparent instead.

Special provisions for special needs children

In cases with special needs children, focus on parental rights and responsibilities with your attorney’s special attention. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.

Both parents must share detailed information about the child’s educational, medical, and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. Consider including special orders in the parenting plan to facilitate the sharing of updated medical information with the other parent as needed.

Determine your child’s specific needs and agree on the frequency of updates required between both parents. If your child sees the doctor weekly, provide a weekly update to your ex-spouse on your child’s condition.


Grappling with the complexities of the right of first refusal in custody cases can leave even the most seasoned attorneys scratching their heads, especially when considering scenarios involving non-parental figures like an ex-husband’s girlfriend. Navigating these nuances often requires the expertise of a knowledgeable family law attorney.

More information on special needs children to be provided in tomorrow’s blog post

The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children. If this is a topic that is relevant to you or your child, head back tomorrow to read more.

In the meantime, if you have any questions about the material that we covered in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.


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Law Office of Bryan Fagan, PLLC | Spring 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 Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled 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 Spring, Texas, Cypress, Spring, 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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