The Right of First Refusal for Parenting Time…a Blessing or a Curse?

Apr 24, 2017 | Written by: Diana N. Fredericks, Esq. | Share

Many parents want to include a right of first refusal provision in their custody and parenting time or marital settlement agreements.  Such a clause requires a parent to contact the other parent if they are going to be unavailable to the children for a certain period.  This requires the parent to do so before contacting a third party to watch the children. 

By way of example only, an agreement could provide, “If either Husband or Wife are unavailable for a period of four (4) hours or more, they shall contact the other parent to offer that parent the right to have that time with the children before contacting a third party to care for the children.” 

This may seem like a good idea, and perhaps in some cases it can be, but it can also backfire and create a level of acrimony and litigation neither parent anticipated.

What time period should be used if you are going to include a right of first refusal in an agreement?  This will depend in part on the ages of children, what is appropriate for them, their maturity level, etc., but it also will depend on the relationship of the parents.  Do you want to have to call your ex-spouse every time you leave your children for a few hours?  That can create a lot of issues with control.  How do you balance the need to ensure both parents have continuing contact with the children and the need for parents post-divorce to have some semblance of freedom?  Do you want your parenting time to be your time without having to notify the other parent? 

If your agreement has a two- or four-hour right of first refusal provision, you could be required to notify your spouse of a dinner date with friends or a new romantic interest.  It could even be something as simple as grocery shopping and errands.   In my experience, that is not what parents intend when they agree to these type of provisions, but that is the reality of their implementation. 

What about family time or grandparents’ time with children?  Should they be considered third parties, requiring you to notify the other parent? 

Some agreements, particularly where parents have occupations that require travel, have provisions related to same or reference the right of first refusal with regard to overnight travel. 

There are endless possibilities.   However, it is important to realize that something that may seem benign, such as saying “if I don’t have the kids, you will,” can lead to very significant and unintended consequences.

A right of first refusal arrangement depends on a very high level of mutual respect and cooperation. If mutual respect and cooperation do not exist, particularly post-divorce, imposing an arrangement such as a right of first refusal will likely worsen an already contentious co-parenting arrangement[1]. 

_{[1] Ferrer v. Durkin, Docket No. A-2122-15T1, unpublished decision April 10, 2017}