What is ‘right of first refusal?’

As you and your spouse are working out your custody agreement, you might want to include something called the “right of first refusal.” This means that if you or your spouse is not going to be able to care for your children during a time when you have custody of them, you must contact your co-parent to give them the opportunity to do so before you ask a family member, babysitter or someone else to do so. This can include after-school situations where you won’t be available to pick up the kids and take them home, an evening out or an unexpected business trip.

A right of first refusal clause can help both parents maximize their time with their children. It can also minimize the time that kids are left with babysitters, neighbors, extended family members or their parents’ new significant others. It helps both parents exert control over who is caring for their children when their co-parent isn’t.

A right of first refusal also gives parents the opportunity to swap their designated time with their children with their co-parent. Perhaps you have to go out of town to help a family member during the days of the week that you normally have your kids. You can ask your co-parent to trade days that week with you. Depending on your custody agreement, though, they may not be obligated to do that.

A possible downside to having a right of first refusal clause is that it will likely require you and your co-parent to have more communication. Instead of asking the parent of one of your child’s friends to let them spend the evening if you have to work late, you’ll need to contact your co-parent. Of course, there are ways to do that without actually talking to them — including email, text and parenting apps. You can both help minimize conflict, however, by giving the other parent as much advance notice as possible.

It’s wise to talk to your family law attorney about the pros and cons of including a right of first refusal clause in your custody agreement. They can also help you work out the language to maximize the benefits and minimize conflict.