Should Dads Include the Right of First Refusal in a Child Custody Order?

 Posted on March 01, 2022 in Child Custody and Visitation

b2ap3_thumbnail_shutterstock_1845670315.jpgIf you are a dad who is going through a divorce, you will understandably be concerned about your ability to spend time with your kids. While parents will be able to share legal custody of their children in most cases, physical custody (also known as visitation or parenting time) may not be divided equally. If your children will be living with their mother for the majority of the time, you will want to make the most of the time that you do have with your kids. You may also want to make sure that you will be able to have your kids stay with you at any times when their mother may be unavailable. To address these situations, you may want to make sure the right of first refusal is included in your parenting agreement or child custody order.

What Is the Right of First Refusal?

To ensure that your children will be able to have a parent caring for them whenever possible, you may agree to include provisions for the right of first refusal as you negotiate a parenting plan. As the term implies, these provisions will give a parent the right to assume care for children in situations where the other parent is unavailable. That is, if your ex cannot care for your children during days or times that they are scheduled to have parenting time, they must first contact you and offer you the opportunity to take the children during this time. They will only be able to make arrangements for having the children stay with others, such as a family member or babysitter, if you refuse the opportunity to care for the children during the time that the other parent is unavailable.

As you and the other parent determine how to address the right of first refusal in your parenting agreement, you will want to consider the following:

  • When right of first refusal applies - To make sure you both understand when a parent will be required to offer the other parent the opportunity to care for your children, you can detail the specific circumstances when you will have the right of first refusal. For example, your parenting plan may state that a parent must offer the other parent first refusal if they will be unavailable for at least four hours during their scheduled parenting time, or you may agree to limit the right of first refusal to days when children are not in school.

  • Methods of communication between parents - To minimize conflict and avoid uncertainty, you may want to detail the ways that you and your ex will contact each other when offering the right of first refusal. If you are concerned about maintaining records of these communications should child custody disputes arise in the future, you may agree that offers should be made using email or text messages.

  • Transportation for children - To avoid confusion and conflict, you may want to detail how pickups, dropoffs, or other transportation-related issues will be handled. This may also help your children transition between your homes more easily and avoid significant disruptions to their routines.

Depending on the laws in your state, the right of first refusal may be a requirement in certain situations, or it may be an option available to parents based on their specific circumstances and the needs of their children. As you work to negotiate a parenting agreement that will protect your parental rights and allow you to maintain positive relationships with your children, you will want to be sure to understand how your state’s laws apply in your situation. Representation from an experienced divorce attorney is crucial, and with the right lawyer on your side, you will be able to create agreements that will meet your needs and protect your children’s best interests.


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