If you are involved in a divorce or a child custody case then your primary concern likely lies in the area of your who will be taking care of your children when you are not with them. That, from my experience is one of the most helpless positions that a parent is put in during a custody or divorce case. I have heard from many past clients that when they are not with their child their ex-spouse will have their child stay with relatives for an entire weekend. This irks parents because the only reason visitation occurs in the first place is to allow both parents an opportunity to spend time with their child. If the other parent isn’t spending time with the child then why should the child have to go in the first place?
The right of first refusal may be something that is of interest to you if you find yourself in a position like this. How this topic can influence you and your family will be the subject of today’s blog post from the Law Office of Bryan Fagan, PLLC
The right of first refusal explained
Suppose that during a period of possession that you have with your child, you find out that you are going to have to be absent due to a circumstance beyond your control. If your child custody orders require you to contact the other parent to inform him or her of your anticipated absence and to allow him or her an opportunity to take possession of your child then this is called a right of first refusal. The other parent can either choose to take possession or your child, or can decline. You then can leave your child with a babysitter or other relative.
The specifics of your right of first refusal can vary dramatically. Some orders allow for the right of first refusal to kick in after only a few hours away. Theoretically if you are called into work for a Saturday afternoon you may need to contact your ex-husband to see if he wants to have your child for this time rather than have your mother come over to watch your child.
The good and bad of the right of first refusal
There are both positive and negative attributes to including a right of first refusal into your parenting plan. Sometimes it would make sense for a parent who has a flexible schedule to have a right of first refusal in a parenting plan. For example, let’s suppose that you are a parent who has only visitation rights to your child. This means that your child lives primarily with your ex-spouse and you are able to see him or her only on the weekends and during the holidays.
Now think about if your spouse, who has primary conservatorship rights, has a job that often times requires him or her to leave home at a moment’s notice to work extra shifts. If you have a flexible work schedule and are available to take your child this gives you built in, extra days of possession. This extra time can add up quickly and make a big difference as far as additional time with your child is concerned.
On the other side of the coin, if you are the parent who does have the right to determine the primary residence of your child a right of first refusal could be a pain in the rear in many regards. You may view the right of first refusal as being more restrictive on your behavior because it is you who has your child in your possession more often than note and therefore it is you who is likely having to check with your ex-spouse on their availability seemingly every time you have to leave your home unexpectedly for any length of time.
Suffice it to say, for a right of first refusal to be included in a parenting plan you must determine ahead of time whether or not it is likely to be workable for you and for your spouse. It doesn’t make much sense to have it included if it is only workable for you. If you do this, despite the unworkability of the provision for your spouse, you are going to find yourself in a lot of frustrating situations where the end result is winding back in court to address your ex-spouse’s violation of your divorce decree. While you may be in the right, it is still a pain to have to hire an attorney, pay an attorney their fees and appear in court for a hearing.
What questions should you ask yourself prior to agreeing to having a right of first refusal included in your parenting plan?
While every family law case is different, I believe that there are certain questions that most every parent going through a child custody or divorce case must ask themselves first.
For instance, you need to ask yourself if you and your spouse get along well enough for a right of first refusal to work effectively. If you cannot communicate well this is a problem because the right of first refusal requires near constant communication. There is nothing wrong to admit that you and your ex-spouse do not work well together and that a right of first refusal would simply cause each of you to run into this issue head-on, too frequently.
If you are the parent who has the right to determine the primary residence of your children, you need to understand that in some instances a parent will ask for a right of first refusal in order to build a case for a modification of these orders down the line. After all, if your ex-spouse wants to file for additional parenting time in the future it would be important to show the court that he or she has taken every opportunity available to him or her to spend time with their child. If you are skeptical of your opposing parent’s motivations then ought not to agree to a right of first refusal.
Next- consider the distance that you and the other parent live from one another. If a right of first refusal requires even short periods of time like 6 hours to be accounted for, consider whether or not it is sensible and workable to arrange for pickups and drop-offs this frequently. If you live across town from your child and have to drive an hour to pick him or her up it may not make sense to do so from a logistics perspective. After all, everything you are doing is supposed to be done to further the best interests of your child.
Last (for today)- how was the right of first refusal introduced into the negotiations for your case? Has this been an issue that was well thought out by all the parties, or was it introduced at the last minute by a mediator in order to help you and your spouse be pushed into a settlement? If you feel like you are being pushed into an agreement on this subject just to finish your case off and reach a settlement you are well advised to consider your options before doing so.
More questions about the right of first refusal will be asked in tomorrow’s blog post
We will conclude our mini-series of blog posts on the right of first refusal tomorrow by going over more questions you should ask yourself about this subject. In the meantime, if you need clarification on any subject we touched on today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys.