Right of First Refusal in Family Law
It is commonly agreed that adults want what is best for their child. It is also commonly agreed that parents are the most influential figures in a child’s life, providing a world view for the child from a young age. Time spent with each parent helps not only to shape the personality of the child but teaches them valuable life lessons while also providing them an impression of what makes a family.
It is invaluable for a child to spend as much time as possible with both parents, but circumstances such as divorce or separation between the parents makes this more difficult. Conflicts and disagreements can impact the time each parent spends the child and can ultimately affect the parent-child relationship. Allocating parenting time in a shared parenting situation can get difficult but the right of first refusal can help make this challenge easier. Having this right of first refusal as a provision in a child custody agreement helps to manage the time kids spend with each parent.
WHAT IS THE RIGHT OF FIRST REFUSAL?
In a child custody situation, the right of first refusal means that one parent must first offer the other parent the opportunity to look after their children before contacting a third-party such as a babysitter or another family member. This is a clause that is commonly added to child custody agreements to help navigate parenting time exchanges, with the benefit that the child gets to spend more time with their parents rather than a non-parent figure.
The right of first refusal can apply to both planned and pre-planned events. For example, if one parent had planned three months in advance to go to an event, then the right of first refusal applies. Or, if one parent has to unexpectedly stay later at work and is unable to care for the child for a length of time, then the right of first refusal could also apply.
WHAT ARE ADVANTAGES FOR THE RIGHT OF FIRST REFUSAL?
The parents get to spend more time with their child. One of the biggest fears of divorcing or separated parents is that they will not have enough quality time with their child. Time demands of work, school, and other day-to-day activities also work to limit the time a parent would have with their children, so this clause is an easy way to provide extra parenting time.
No one cares more about a child’s welfare and safety than a parent. The right of first refusal helps to ensure that the child’s care is entrusted with someone who has the child’s best interest at heart.
This helps encourage the parents to communicate with each other. The right of first refusal clause helps to keep both parents involved in the care of their child and promotes a healthy, friendly relationship between the parents rather than an antagonistic relationship.
WHAT ARE DISADVANTAGES FOR THE RIGHT OF FIRST REFUSAL?
The right of first refusal has the possibility of interfering with other relationships in the child’s life, such as with grandparents or aunts and uncles. If the other parent always agrees to watch the child, then it may mean that the child would not be able to see other relatives unless you are there with them.
It can create distrust or conflict between parents. Last minute changes can lead to problems where the other parent is unable to take care of the child leaving you to find a babysitter last minute.
It can create interpretation problems depending on how strict the wording of the clause is. If you were to remarry or in a long-term relationship, would your new partner be able to watch the child or would the right of first refusal still apply? Does this mean summer camps are not allowed? What happens once the child is old enough to sleepover at a friend’s house or old enough to drive?
NEGOTIATING A RIGHT OF FIRST REFUSAL
One must be careful when negotiating the terms of the right of first refusal. Depending on the terms stated, it could mean that no one but a parent can watch a child, or limit what experiences a child may be able to experience such as sleepovers. It is important to think of the long-term consequences while drafting this. Some things to keep in mind include:
The minimal amount of time a parent must be unavailable before the right of first refusal comes into action.
Use specific language and define time frames. For example, how long is the weekend? Is it Friday evening to Sunday night? Or is it 7pm on Friday night to 10pm on Sunday?
Are family members allowed to watch and care for the child?
Are daycares and work supported childcare allowed?