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Right of First Refusal in Custody Orders

A right of first refusal is common in contracts, but not as well known when it comes to child custody in California. When a right of first refusal is included in a custody order, it creates obligations when a parent is unable to care for a child and would typically contact a babysitter.

Instead of asking a neighbor, relative, or sitter to care for the child, the parent needing assistance is required to contact the other parent and give them the opportunity to watch the child before they ask anyone else. Some people refer to this provision as a “first right to care for a child” instead of first right of refusal.

A right of first refusal can be helpful in some custody situations and problematic in others. It is a good idea to discuss the potential need for a right of first refusal with your custody attorney. Here are some factors to keep in mind.

First Right of Refusal Can Be Structured in Different Ways

Parents can establish a structure that gives parents a first right of refusal in a great number of instances or only in specific situations. For instance, they might establish an order that requires the custodial parent to give the other parent to watch the child if the custodial parent will be away from the child for a certain number of hours or overnight. Or the order might specify that before the parent can enroll the child in daycare, that parent must give the other parent the first opportunity to provide care for the child.

Parents can agree to include right of first refusal provisions in their custody stipulation that then becomes part of the court order. Or if one parent wants a right of first refusal and the other does not, then the parent seeking the order will need to convince a judge that the right of first refusal would serve the child’s interests.

Of course, parents who cooperate together can establish their own understanding where they agree to call each other first in certain situations. This type of arrangement does not have the force of a court order, but it often results in less stress and friction for the child.

When a Right of First Refusal May Be a Good Idea

There are instances when a parent requests parenting time that they are simply not prepared to provide. For instance, a parent might request a 50/50 custody schedule to keep child support obligations low or just to prevent the other parent from having a greater share of time with the child. If that parent has a work schedule that prevents them from actually being with the child 50% of the time, the child may be placed with a babysitter for considerable periods. In that type of situation, a right of first refusal can allow the child to spend more time with a parent instead of being passed off to babysitters.

Generally, a right of first refusal is most helpful when it is only triggered by an overnight stay. For instance, parents might agree to give each other the first right to provide care if the child needs overnight care for more than two nights. Or the agreement might specify that if the custodial parent must be away for one night or more and the grandparents are unable to care for the child, then the custodial parent must give the other parent the right to provide care.

Problems with a Right of First Refusal in Custody Situations

When parents insist on strict adherence to the right of first refusal rules, the situation can become complicated and stressful. For example, if a parent’s car breaks down when they are supposed to pick up the child from school, instead of asking a neighbor or friend to pick up the child, they may be required to attempt to contact the other parent instead, and by the time they reach the other parent, there may be no one else available to assist the child if the other parent is not able to leave work and get the child.

Or if a parent exercises their right of first refusal to take the child for a night, then the other parent might demand that the parent give up a future night to keep parenting time even.

An Experienced Attorney Can Help You Establish the Right Custody Arrangements for Your Family

Before making a decision about whether you want to include a first right of refusal in your custody order, it is helpful to discuss the details of your situation with your attorney. At Holstrom, Block & Parke, APLC, our Certified Family Law Specialists and associates have extensive experience with first right of refusal clauses in custody arrangements, so we can describe the situations where these clauses have proven helpful and situations where they cause more problems than they solve.

We invite you to schedule a free consultation to learn more about the ways we can help with divorce, custody, and other family law matters. Just call 855-426-9111 or contact us online to get started.

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