What is a First Right of Refusal Clause in a Child Custody Case?

Are Clauses Needed In A Child Custody Case? Weighing The Pros And Cons.

Parenting time is often one of the most important issues in a divorce or custody case. Crafting the agreement allocating parenting time can be difficult. It is impossible to anticipate all the schedule changes that daily life “curve balls” can cause, such as illness, emergencies, and changes in work schedules. One solution to that problem is to incorporate a “First Right of Refusal” into the shared parenting plan or seperation agreement.

WHAT IS A FIRST RIGHT OF REFUSAL CLAUSE?

Typically, this clause requires that one parent must first offer any time he/she can’t accommodate the child during their regular parenting time to the other parent. This “offer” must be made to the other parent BEFORE attempting to make any alternate plans for the child.

For instance, if the parties share the child week on and week off and have negotiated a typical first right of refusal clause, and let’s say that Dad can’t care for the child due to a family emergency for 5 hours, then he must offer the time to Mother rather than having a family member or care giver watch the child. This allows each parent to absorb any unavailable time which the other parent can’t accommodate. If Dad were to ask say his Mother or his Sister to watch the child without talking to the child’s mother, it would be a violation of the first right of refusal provision. These clauses typically apply to planned as well as unforeseen conflict situations.

PROS & CONS TO FIRST RIGHT OF REFUSAL CLAUSES.

Positives:

The purpose is to ideally benefit both parents. They are designed so that both parents maximize their time with the children. They also try to minimize daycare and babysitting costs. The flexibility will hopfully strengthen the bonds between the parents and the children.

Negatives:

First right of refusal clauses can create a lot of conflict rather than reduce it. If a parent needs to do an errand for a few hours and has say another family member  watch the child, is that a violation? What if your daughter’s friend is having a slumber party and wants you daughter to spend the night? I have seen that situation litigated in Court!

The benefit of these clauses depends a lot on the parties ability to commumicate together, act in the child’s best interest and be reasonable and flexible. Some parents include this provision to use as a club to disrupt and make their Ex’s life miserable! Then there is a battle over each request! I have personally see many contempt motions filed over alleged breaches of these clauses!

AUTHOR’S OPINION:

As I think you can tell, I don’t like them one bit! If the parties get along reasonably, why do you need one at all? Just agree to plan ahead and call the other parent if something comes up and work it out. If the parties DON’T get along or communicate well, including such a provision in your Court documents is an invitation for more conflict, returning to Court and paying more attorney fees!

Plus, over my 40 years of practice as a divorce lawyer, I have seen some of these clauses exceed 3 pages with lengthy definitions, rules, penalties and the like! They are longer than some entire custody provisions which I have seen.

My advice, DO NOT INCLUDE one of these clauses in your Court documents. Just work hard to keep up good communications with your Ex and be flexible and understanding because invaribly “what goes around, comes around”.

Experienced Trusted Dayton Ohio Lawyers

Our experienced Dayton divorce lawyers at Holzfaster, Cecil, McKnight & Mues can assist you with your divorce, custody and parenting issues. To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!

Tell us about your case.

© 2021 – 2023, Ohio Family Law Blog. All rights reserved.