Understanding a “right of first refusal” in co-parenting

When parents share custody of their children after divorce, it often feels like they don’t get to see as much of them as they’d like – no matter how fair the terms of their custody agreement may be. They also may have some concerns about who’s caring for their child when they aren’t with their co-parent. Including a “right of first refusal” provision in a child’s custody agreement can help to address both of these concerns.

This provision (which may also be called “first right of refusal”) states that each parent will notify the other when they need someone to care for the child during their parenting time and give them the opportunity to provide that care before making other arrangements. Typically, these provisions apply to both parents, but they don’t have to. A parent who has the lesser amount of custody time may be the only one who wants an opportunity for more time.

How does this provision work?

The scope and nuance of such a provision will be up to you and your co-parent, if you choose to make one part of your parenting plan. You can make it as specific or broad as you like. However, typically, it’s good to include some detail to help prevent conflicts later. You can address a number of specifics, including:

• For how long will you have to need a caregiver before the obligations of this provision “kick in” (for example, an hour, overnight or a full day)?
• How will you contact your co-parent about needing care?
• How soon will you need to contact them after learning that you need child care?
• Who will bring the child back and forth?
• Will you have the opportunity to make up the time you had to be away from your child?

Including this provision in your custody agreement will likely mean more interaction between you and your co-parent, so it’s important to make sure that the two of you can approach said engagement peacefully. When attempting to negotiate the terms of this provision, it can help to have the assistance of a legal professional, given the consequential nature of the situation at hand.