Right of First Refusal: Potential Issues

Posted on Mar 6, 2024 by Katie Carter

I’ve said it before; I really like a right of first refusal.  But that doesn’t mean that issues can’t arise when you implement a right of first refusal provision in your separation agreement or court order!  All KINDS of issues can come up in family law cases and, I am sorry to say, to the unscrupulous coparent, all sorts of crazy ideas might start popping up in his head, both before and long after the ink is dry on the final divorce decree.

Like anything else, the best defense is a good offense.  (Since Taylor Swift started dating Travis Kelce, I’ve watched more football than ever, so sorry for the sports metaphors.)  It’s always a good idea to draft these provisions – and, in fact, ANY provisions that you include – with an eye to how they might be weaponized later.

I know, I know.  You don’t have a crystal ball.  And neither, unfortunately, do I.  But there are some things that I’ve seen happen that can commonly come up and, if this is a concern for you, it’s something we can work on to make sure that your right of first refusal clause can’t be weaponized unnecessarily.

First: What IS a right of first refusal?

Oh, right – let me back up!  A right of first refusal is a clause that says that, when you have parenting time and you are unable to care for the child for a period of more than a certain amount of time (2 hours, 6 hours, 8 hours, overnight – whatever, it’s up to you), the other coparent has to be offered that time before you can call a babysitter or some other third party to watch the child.

You probably like that idea.  After all, if HE has parenting time (especially if he has shared physical custody), you probably want as much of that time for yourself as possible.  You probably already suspect that he’s not going to be able to meet their needs on an ongoing basis, so you like the idea that you can take them back if he can’t care for them himself.

What kinds of issues come up with right of first refusal provisions?

The most common issue I see is that the child’s other parent will try to use the right of first refusal to disrupt regular care routines – like the daycare that you have in place so that you can work.

I wouldn’t say that it’s a common issue, but it’s an issue that can come up, especially if he’s unemployed or frequently in and out of work.  If he suddenly isn’t working, can he use the right of first refusal to request ALL the extra time with the kids, thereby bolstering an eventual argument that he wants primary physical custody?

Another issue I see is that an unscrupulous coparent will leave the child in the care of someone else in their home and call that good enough.  If he’s living with his mom, or a new girlfriend, he may consider that care in his home doesn’t really trigger the ‘third party’ restriction, especially depending on how that provision is worded.

The devil is in the details; carefully consider the wording of your right of first refusal clause!

How do YOU hope to use this clause?  How do you want him to NOT use it?  These are some primary considerations when it comes to drafting these provisions.

I would normally put in something about the right of first refusal being triggered only when there’s additional care needed beyond the regular daycare needs.  If you have – and are paying for! – childcare on an ongoing monthly basis, it’s costly and unnecessary to continually pull the kids out or to open the door to their schedules becoming even more irregular.  If you’re worried that he’ll take this position, you can put in there that your typical day-to-day daycare needs are excluded.  (After all, who wants to text every day that the kids will be in their usual daycare location tomorrow?  It’s cumbersome and unnecessary.)

If you, on the other hand, aren’t working, you might NOT want to put this language in – and, anyway, they wouldn’t have a regular daycare situation!  You might want to be able to be on call on a random Monday or Tuesday when he can’t care for the child(ren) as anticipated.  You may prefer that they not be in daycare.  (And, at any rate, he may prefer this, too; the costs of childcare can really make the child support obligation go through the roof.  Tell him to check on it, if he’s wondering!)

Make it clear when and how the right of first refusal is triggered.  There’s no right or wrong here, there’s only the reality of your specific situation and the accommodations you have to make in order to make it all work for you and your children.  (Not someone else’s!)

EXCLUDE specific caregivers you don’t want utilized!

Don’t like his mom?  Put in there that the kids will not be left in her care.  (Though, keep in mind, he may want to make this mutual, and apply to your mother, too.)

Worried about his endless parade of girlfriends?  Put in there that the kids should not be left in the sole care of someone that he’s dating.

INCLUDE providers you DO want utilized.

Want to use a specific, consistent caregiver?  Include that person’s name in the agreement.  Ideally, if you do this, you’ll want to also address what you’ll do when/if that person isn’t available (which will inevitably happen) or under what specific circumstances you’ll allow someone else to be utilized to care for your kids.

Do you want to discuss together and mutually select appropriate childcare providers – even babysitters – that you might use on your (and his) parenting time?  I think that’s reasonable, especially if you’re doing it together and you’ll both follow those rules.  Keep in mind, though, that this will give BOTH of you insight into each other’s otherwise separate time with the children, so it’s a bit of a trade off.  You can prevent him from doing things you don’t want on his time, but that gives him say-so in how you handle childcare on your time, too.

I might even – if I were you – want to specify that this provision applies when ANY third party, non-parent person is employed to watch the kids, so there’s no question that he can’t just assume that because he lives with mom or his new girlfriend that they’re not third party caregivers.  You might be surprised (or, then again, you might not) at how often differences of opinion arise with respect to even the most basic issues.  And, even if you’ve discussed it orally, if it’s NOT in your agreement, it’s not something that he can be held accountable for.

It’s HARD to trust someone with your kids.  And you may even know ahead of time that there are a few people that you specifically do NOT want involved.

You don’t have a crystal ball, but you do have insight already into who your child(ren)’s father is and what kind of tricks he might pull.  Use that to your advantage and put in place specific, concrete language that allows your right of first refusal provision to provide all of the protections – and none of the headaches.

For more information or to schedule a consultation with one of our women-only custody attorneys, or to request a copy of our custody book for Virginia moms, give our office a call at 757-425-5200.