What’s in a Right of First Refusal Provision?
Through this blog we will provide you with information to help you decide whether the inclusionof a right of first refusal provision is right for you. A right of first refusal is a provision in a custody agreement which provides that if the parent who is exercising parenting time with the child(ren) is unable to personally provide care for them, before enlisting a third party, babysitter or other childcare provider, the other parent must be offered the right of first refusal to care for the child. In theory, this sounds like a terrific idea. However, there are many complicating factors which you must consider.
Time:How long the parent will be unable to care for the child(ren) is always a consideration. For example, if that parent is unable to personally provide care for the child for thirty (30) minutes, it hardly makes sense for the other parent to swoop in to provide care for such a short time. Typically, I see a period of at least three (3) or four (4) hours to make this provision meaningful, which depending upon how far the parties live from one another, may even be short. Further, you need to consider during what time the number of hours takes place. For example, if the child(ren) go to bed at 8 p.m., and the parent exercising parenting time will be out of the home from 9 p.m. to 1 a.m., should that trigger a right of first refusal? This would require the child(ren) to be woken up to transfer their care. During sleeping hours neither parent is exercising meaningful time with the child(ren). Therefore, it may make sense to say that if either parent is unable to personally care for the child(ren) for the agreed upon time between the hours of 8 a.m. to 8 p.m., then the right of first refusal option will be triggered, or during waking hours (not overnight). This can be tailored to fit the child(ren)’s sleep schedule.
Enforcement: Many clients have come to me over the years complaining that the other parent failed to offer the right of first refusal. That parent lies and says they were not away from the child for the specified time period. It is hard to prove in a Court that this provision is violated, absent surveillance from a private investigator, which can be costly.
Two-way street: Right of first refusal provisions are typically a two-way street, meaning it will apply to both parents. Typically, there is one parent who wants this provision as they fear that the other parent will leave the child(ren) with their girlfriend/boyfriend or constantly delegate care to another family member. However, the other parent must consider that if they are not available to personally care for the children, then they too need to provide this right to the other parent.
Conflict: If 2 parties do not get along, including a right of first refusal provision will require more communication and contact between the parents who cannot get along in the first place. In very contentious relationships, the harm that may come from the parties having more access to one another and therefore more opportunity for conflict, may outweigh a concern that a thirdparty will be caring for the child(ren) as opposed to the other parent.
Control: Often relationships end because one party is too controlling, possessive or is a narcissist. In these situations, having a right of first refusal can be used by that party to exert unnecessary control over the other parent. A right of first refusal provision in this situation can be dangerous. For example, if the problematic parent knows that the other parent is very concerned that he/she will leave the child with his/her new girlfriend/boyfriend, they may offer the right of first refusal in a situation when he/she knows the other parent is not available. This then may cause conflict and anxiety in the parent that cannot accept the right of first refusal in that instance.
Third party – Childcare provider: When my clients are considering a right of first refusal provision in their custody agreement, I try to understand what the true concern is. Sometimes it is genuinely that that parent wants as much time with their children as possible and is conceding a parenting time schedule that is less than what they want (i.e. 50/50 schedule as opposed to a more traditional alternating weekend / mid-week dinner visits). If they accept all offers of a right of first refusal, they have more time. Other times, clients are considering a right of first refusal provision out of fear that the children will be left with a certain individual. In that instance, I try to help my client come to a resolution on his/her own as to whether that concern is legitimate or emotionally driven. For example, not wanting your children to be left with the new boyfriend / girlfriend or new spouse may just be an emotional feeling of betrayal (in affair situations) or loss of control, as opposed to a concern that the child(ren) are not being cared for properly. However, concern for that same person who is nasty to the child(ren) or has an addiction issue is a more valid concern. In that instance, conversation, negotiation and sometimes litigation is warranted to instead provide a provision in the custody agreement that precludes the child from being left along with this particular person.
A right of first refusal provision can be tricky. If you are contemplating a provision such as this in your custody agreement and need advice, contact a member of Geffner Kersch to help you decide if this provision is right for you.
