Ask Yourself: Is Including a Right of First Refusal in Your Parenting Plan the Right Thing to Do?

In yesterday’s blog post we introduced the topic of the right of first refusal as it pertains to parenting plans in family law cases. Essentially, the right of first refusal requires either you or your ex-spouse to contact the other if one of you needs to be away from your child for an extended period during a court-ordered possession period. What are the pros and cons of right of first refusal custody? Instead of leaving your child with a babysitter or relative, your ex-spouse would need to call you first if he or she had to run to work to fill in for a co-worker’s shift. 

This situation necessitates understanding the pros and cons of including this right in your child custody orders. As I often advise in such circumstances, it’s worthwhile to revisit yesterday’s blog post before reading today’s, to ensure you have a comprehensive understanding of the topic. Once you have done so, I encourage you to take a look at what we have to say in regard to questions that you should ask yourself before agreeing to a right of first refusal.

Do you and your ex-spouse agree on how situations are to be communicated to one another?

To be unclear is to be unkind, as a wise man once told me. You and your spouse must not only agree on the general principles regarding the right of first refusal but also ensure that you clearly outline the specifics of the plan in your orders. One crucial aspect to consider is how you will offer the right to the other parent. What are the methods by which the other parent can accept? How much time can one parent provide to the other in order to satisfy the requirement for providing the right of first refusal?

Basically- is the right functional enough so as to provide you and your ex-spouse with the benefits that the right affords you both, while being flexible enough so not to paint each of you into a corner that interferes with your abilities to parent to your child and engage in last minute changes in your plans. Remember that the right of first refusal is far from a necessity for your case. It is a nice add on for certain parents in certain situations.

Consider the source as far as which parent is requesting that the right be included

If your ex-spouse is the one who is requesting that a right of first refusal be included in a parenting plan then you need to consider if he or she has proven themselves to be responsible in the past as far as who has done the caretaking for your child when he or she was in that parent’s possession. If you are going through a divorce and have no track record to base any opinion on then you may not want to agree to this right being included. You probably have a good understanding if your child’s other parent will go ahead and turn over your child to their own relative once the right of first refusal is taken up.

On the other hand, if your ex-spouse has shown for years that he or she has always taken all of the time with your child that was provided to him or her you probably have a fair amount of data to make a decision based off of. It’s more than likely that he or she will actually be present with your child during the time that you are unable to care for your child. As a result, you should feel more confident that your child will be in good hands and that including a right of first refusal is in your child’s best interests.

Does your child’s other parent display bad behavior surrounding you and your personal life?

Once you and your child’s other parent are no longer together in a functioning relationship, he or she likely does not need to know all of the ins and outs of your life. With that said, it is worthwhile for you to examine whether or not you trust your child’s other parent. Has he or she ever tried to read your emails, look up information about you online or otherwise sought information that he or she should not have access to?

On a related subject, have you and the other parent had prior issues involving lack of trust, dating violence, infidelity or anything related to those subjects? If so you may re-opening your life to unnecessary intrusion by your ex-spouse. Consider whether or not you will be able to wall off a certain segment of your personal life in order to open up another to him or her. An ex-spouse can more easily learn your schedule, habits, and other details when a court order forces you to constantly keep them informed of your comings and goings through a right of first refusal.

What affect will the right of first refusal have on your ability to have your extended family spend time with your child?

In most cases, you have the freedom to choose who your child spends time with during your custody periods. This includes taking your child to your mother’s house, even if your ex-spouse disapproves. Your ex-spouse has no authority to prevent this. Moreover, your mother can also babysit your child if your ex-spouse needs to work unexpectedly.

The same principle applies to you and your extended family. During your custody periods, your ex-spouse no longer has significant control over who spends time with your child or when—unless a right of first refusal is included in your parenting plan. Without this provision, you have the freedom to have your relatives come over to watch your child for an afternoon. However, under a right of first refusal clause, you must inform your ex-spouse of any planned absence from your home and give them the opportunity to take possession of your child during that time.

To summarize, by including a right of first refusal in your parenting plan, you’re sacrificing some personal autonomy in decision-making for your children in exchange for giving your ex-spouse more opportunities to spend time with them. This choice is entirely yours, and there’s nothing inherently wrong with it, as it involves decisions about your life and your child’s well-being.

However, it’s crucial to carefully assess your circumstances and the dynamics between you and your spouse before agreeing to incorporate a right of first refusal into your parenting plan. This arrangement may not be suitable for every parent or every child. Reflect on the questions we’ve raised in our recent blog posts. If you have any doubts about these scenarios, it’s wise not to rush into an agreement that includes a right of first refusal.

Questions on the right of first refusal or any other issue in family law? Contact the Law Office of Bryan Fagan, PLLC

After reading through our blogs on this subject if you have any questions about the right of first refusal we would be honored if you were to contact the Law Office of Bryan Fagan, PLLC today. Our attorneys are licensed and practice exclusively in the field of family law. Sitting down with one of our attorneys you can ask questions on whatever subjects you would like to learn about. We represent people in our community just like you and take a great deal of pride in doing so.

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