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The right of first refusal in a Texas family law case

In yesterday's blog post from the Law Office of Bryan Fagan, we introduced the topic of the right of first refusal. You can look at that phrase a handful of times and you probably won't figure out what it means, so I figure I should just come right out and tell you. The right of first refusal is, first of all, a nonstatutory right that is not codified in the Texas Family Code. It is an important right for many families that can help to avoid conflict and stress regarding co-parenting a child. 

The question we need to answer is this: do you believe that another adult (even a competent one) should be able to exercise your ex-spouse's periods of possession for him/her if they cannot? If your ex-husband is an emergency room physician and is frequently called in during the weekend should he need to call you on Friday night to tell you that he has to spend the next 36 hours in the trauma unit? Or, should he be able to keep that to himself, call his mother and have her come over to have some grandchild-grandma time?

This is the central issue to the whole concept of the right of first refusal. The beauty of the right of first refusal is that you and your attorney can define the term however you want and then attempt to negotiate with the other side based on your definition of the term. Once you all have defined the term you can then create a period that requires one parent to contact the other for the right of first refusal to come into play.

Let’s use our above example of your ex-spouse the doctor as a way to flesh out this point a little more. Suppose that your ex-husband has weekend visitation with your son coming up in a few days. He drives to your house, picks up your son and takes him for the customary weekend of good times with dad. However, he receives a phone call at 11:00 that Friday night telling him that he will need to be ready to go for a 36-hour shift at the ER this weekend. This means he will be at the hospital until midafternoon on Sunday. What happens with your son in the meantime?

Well, if you negotiated for a right of first refusal then the terms included in your final decree of divorce would come into play. Let’s assume that you included a provision that in the event that either parent would need to be away from the home for a period lasting longer than four hours, that the absent parent would need to contact the other parent to allow him or her the right to refuse to possession of your child for that period of time. 

Here, your ex-husband would need to contact you as soon as possible to see if you would want to get your child for the period that your ex-husband would be at work. It would be up to you whether or not to take possession of your child. Refusing to take possession would not count against you in some way. It would not dissolve the negotiated for language within the final decree of divorce. It would simply mean that your ex-husband would call his sister or mother or father, etc. and have one of them come over to watch your son for the remainder of the weekend.

You would likely need some language to specify who does pick up/drop off of the child, how quickly contact needs to be made after learning about the need to leave the home and how to return the child once the absent parent is once again available. These can be little details that can derail the whole process and cause it to not work as smoothly as it should otherwise. Plan and you will be better off in the long run.

Another thing to think about including in your court orders is when the right of first refusal goes into effect and when it ceases to apply to you and your family. Say, for example, that your ex-spouse gets off early from his 36-hour stay at the ER. The time is 12:15 in the morning and he wants to come to your house and pick up your son for the rest of their weekend. Does that mean that as soon as you see his text message that he is coming over, that you need to get your son dressed, packed up and ready to see his dad?

I would think that including some sort of provision in the final decree of divorce that no exchanges of your child should occur between 10:00 p.m. and 8:00 a.m. is reasonable. Consider extending those hours out for a younger child and pushing the hours closer together for a teenaged child. I don't think it would hurt anything for your child to be able to get a full night's sleep and be ready to go to their dad's house at 8:00 a.m. the next morning. There is no perfect solution to the problem of having to be away from your child, but this sounds like a reasonable compromise.

What about having another person be able to step into the shoes of a parent for possession?

This is a very contentious topic among persons going through child custody or divorce cases. All parents tend to be very protective of the time that is afforded to them in a family court order. As a result, your first instinct is probably not to offer more time to your ex-spouse out of the kindness of your heart. If you learn that you have to be away from home during a period that you are supposed to be with your child, what can you do?

Well, many parents will ask that a step-parent, significant other, mother or father be designated as a person who can step into the parent’s shoes and exercise the visitation rights provided in the final decree of divorce. In that case, as long as one of these folks is available to be there for your child the right of first refusal would not be triggered and you would not necessarily have to be notified of your ex-spouse having to leave the home. 

At no point in this discussion have we asked a very pertinent question: what is best for your child and (when age-appropriate) what does your child want to happen? If your child does not get along with your extended family and otherwise would be subjected to an entire day of television watching at the in-law's place, he or she would probably prefer that the right of the first refusal goes into effect without consideration of the availability of any other person who could step into the shoes of their absent parent.

Ultimately, you should do what is best for your child- whatever that is. If you think that your child should spend their time with their parents then you would probably want to include the right of first refusal into your court orders. The reason being is that this is a great way to ensure that you or your ex-spouse will always have your child. Likewise, if you and your ex-spouse do not have a preference or believe that your extended families deserve an opportunity to care for your child then this can be a good way to see to it that this happens. Safety and happiness of your child need to be considered. Once it has been the rest of the details will fall nicely into place.

Extra-curricular activities and your child

Another area that I see parents fighting each other in child custody and divorce cases are over extra-curricular activities. You may be thinking that this doesn't sound right. After all, how can ballet and t-ball rise to the level of parenting time with your children or even a subject like child support? Well, allow me to explain why this is such a highly contentious issue and how you and your family can avoid potential problems in the future.

Many parents (maybe even you) believe that your child needs to be involved in countless social and extracurricular activities. Building confidence, self-esteem, and social skills are all traits that can be positively developed by participating in extracurricular activities. The activities are often not limited to the activity or game itself, but training classes, private lessons and even sports camps that are utilized to refine and learn particular skills.  

On the other hand, you may not share that particular view. It could be your opinion that your child deserves to be involved in some activities but still needs to have some freedom to be able to engage in normal childhood activities. When you and your ex-spouse hold such divergent views on this subject is there any way possible to find a middle ground?

One thing that I have seen some parents implement into their cases with success is allowing each parent to choose one activity for their child to participate in each semester. That gives both of you some say to what your child is engaging in on a semester-long basis. That way, if your ex-spouse wants to have your child play football in addition to baseball, you can point him towards your court order which bars adding sport to your son's calendar. Your court order acts like the bad guy in this scenario- not you.

Who provides transportation to the extracurricular activity, who can attend performances/games and other questions like this will need to be hammered out in the final orders. Do not expect the answers to these questions to be sorted out once you get past your divorce. It would make much more sense for you all to include provisions to this effect with your final orders. The same goes for the costs of signing up for the activity as well all who will provide transportation for your child. 

What about managing the financial affairs of your child?

Any accounts that you set up for your child’s benefit ought to be in your name or that of your spouse. The reason for this is that you can avoid paying taxes on the monies inside of the account if the account bears your or your ex-spouse’s name. If you were to set up a 529 account through the Texas Tomorrow Fund or another type of trust, you could have your name on the account. That way you can ensure that the funds are used properly and that you will not waste, 

What about uninsured medical costs? How will those be divided between you and your ex-spouse?

One of the rights that the Texas parents have about their child is the right to be able to obtain pay-back for uninsured medical expenses. The fact is that even the best of health insurance plans do not pay for every bit of care that your child may need to receive. Do not put yourself in a situation where your ex-spouse has an unlimited amount of time to pay you back for costs that you had to pay out of pocket. Thirty-day payback limits make sense to me. You can set up a reminder at the end of each month to contact your ex-spouse to make sure that he or she email you copies of bills to pay your share or to contact your ex-spouse to inquire about paying you back.  

Rights concerning pets- where we will pick up tomorrow

We will start right back up tomorrow by discussing rights regarding pets as a result of family lawsuits. If you have any questions about the materials that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where you can have your questions answered in a comfortable and pressure-free environment. We pride ourselves on delivering superior results to our clients no matter what their circumstances may be.  

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