What is a right of first refusal?

Posted on Jun 27, 2022 by Katie Carter

We encourage our clients to think of their separation agreements as their own document. Though we have a form agreement that we base all of our agreements off of, there’s often a fair amount of customization that takes place.

That’s the most ideal scenario. We take a document that we know already has some of the good, general provisions built in to help you avoid some of the mistakes that other women have made over the years, and then we draft specific provisions designed to address the unique concerns you have for your family and the goals that you have articulated to us.

The result is a highly customized document that reflects your goals and priorities and comes up with unique solutions to some of the issues you run into the most or those which are most frustrating to you (or maybe most damaging to the type of coparenting relationship you’re trying to establish). Perfect, right?
It’s not easy work – in fact, in uncontested cases, this is some of the most important and complex work that we do – but it’s really important.

I often say to my clients that the devil is in the details. It’s a cliché, but it’s so true in divorce. All too often, people want to tell me that they’ll just work it out when it comes up, or they’ll just leave it open ended so they can figure it out later on. That is almost always a mistake, in my opinion.

Problems arise when two people navigate unfamiliar waters without a plan. If you separate and eventually divorce and don’t put in place an agreement that tells you what to expect in as many scenarios as possible, you’re going to feel uncertain and uncomfortable. If you AND your ex are uncertain and uncomfortable, you may lash out irrationally.

When it comes to custody and visitation especially, I think it’s important for both coparents to go into things knowing exactly what to expect. Having, say, a custody and visitation ‘agreement’ that just leaves the times up to the parents sets you both up for failure. To a mom, that sounds like, “Oh, I’ll just say no to whatever is inconvenient,” and to a dad, it often sounds more like, “I can have the kids as often as I want them.” Without discussing it, without coming up with a plan, two different sets of expectations exist. Disappointment ensues, which becomes anger, and bubbles over into years of simmering resentment – resentment that results in continued litigation and damage to your children.

Custody, visitation, and child support are modifiable based on a material change in circumstances, so you can bet your boots that, if one or the other of you is continually upset by the current arrangement, you’ll find yourself in court sooner or later.

It may be unavoidable. Oftentimes, custody and visitation cases DO go back to court for modification over time. But if you can just do a good job now and avoid some of the expense, stress, and frustration of continued litigation, then – in my opinion – that’s time very well spent. That’s why I often counsel my clients to think about particular pain points, and come up with solutions to address those concerns specifically.

Is he someone who is chronically late? Does he suffer from mental illness? Is there a drug or alcohol addiction? Is he going to show up and the last minute and expect something different than what you discussed? Will he try to introduce a girlfriend too soon?

Will he pawn the children off on someone else during his parenting time?

There are a million different things that can come up, but pawning the children off on someone else – usually his parents – is something that I see happen a lot in custody and visitation cases. Understandably, its something that upsets moms for a number of reasons. In some cases, its because the relationship with the in laws is complicated already, and they’d prefer that the association be more limited. In other cases, its because dad is pushing for shared custody to get the reduction in child support, even though he has no intention of actually parenting the children during that extra time.

There could be any number of reasons. But, for mom, it can be a problem. So, what’s a potential solution?

What’s a right of first refusal?

A right of first refusal is a typical contract provision. It can exist in a number of different contexts – like if, for example, one party wants to keep the marital residence but the other wants to have the option to buy the house before its sold to a different person.

It can also exist in the custody context. Basically, you can put a provision into your agreement that says that, if either of you is going to use childcare during your parenting time for a period in excess of a certain amount of time (2 hours, 4 hours, 8 hours – whatever, it’s entirely up to you), that the child’s other parent would have to be offered the child first. No other alternate child care could be arranged without offering the child (or children) to the other parent first.
Keep in mind that these provisions are usually mutual, so if it applies to him, it’ll apply to you, too. Maybe that’s a problem, maybe it’s not – but either way, its something you’ll want to keep in mind as you draft a provision with your attorney.

Maybe you want to write the provision so that this is only for time that is outside of the regular work-related childcare that you regularly utilize. It would be time consuming and ridiculous to call every morning before you send your child to your regular daycare provider. But if, for example, your child’s father is hoping to use his mom for HIS work related child care, but you’re also available – the right of first refusal could be triggered to apply.

If he wants shared custody but doesn’t use the time – or I end up with the kids back with me all the time under the right of first refusal – can I modify child support?

Yes! Chances are good that, at least initially, he’ll get shared custody, especially if he litigates. But if he doesn’t utilize the time, or he tries to get extra time and then pawn the kids off on a childcare provider or even his mom or some other family member, you could petition to modify, especially if you have a right of first refusal in place that means that the kids are automatically sent back to you.

You’ll want to document, document, document. Maybe even keep a calendar so you can demonstrate how many of “his” days you ended up getting!

What if we have a right of first refusal, but he doesn’t follow it?

Once it’s in an agreement or court order, if he doesn’t follow it, you can file a show cause against him. He’ll have to answer to the judge for his failure to comply with the terms of the agreement or court order.

I want a right of first refusal, but what if he won’t agree?

If he won’t agree, you may have to litigate. You should talk to a local attorney in your area about your chances of being successful, but I think it stands to reason that a judge would look favorably on a parent being able to be with a child rather than a non parent. You definitely have a leg to stand on legally, so don’t be afraid to take the issue to court!

For more information, to schedule a custody consultation, or to request a copy of our custody book, give us a call at 757-425-5200.