What is a Right of First Refusal and Should I Have One in My Divorce Decree?

A right of first refusal is often incorporated into divorcee decrees to ensure that the parents are provided the first opportunity to care for their children in the event the other parent will be unavailable. In theory, a right of first refusal seems like a great idea in that it will allow the children to be in the care of a parent whenever possible. However, in practice the application of the right of first refusal can be fraught with difficulty and can lead to additional arguments between the parents.

Often times a right of first refusal will cover a time period of anywhere from 1 to 8 hours, as disclosed in the stipulated divorce decree. One of the most contentious issues involving the right of first refusal will deal with a situation where one of the parents continues to work and the other parent stays at home. What this right of first refusal, if not narrowly defined, will do is allow the stay at home parent the opportunity to essentially undercut the other parents visitation.

To illustrate this point we will look at a shard physical care arrangement where the parents have the kids for alternating weeks with a stipulated divorcee decree that includes a broadly defined 4-hour right of first refusal. If in this situation one of the parents continues to work full time, and the other parent is a stay at home parent, the stay at home parent could daily exercise the right of first refusal to care for the children during the other parents work day.

Again, on the surface this may sound like a great outcome; however, in practice this often leads to additional animosity and arguments between the parents as the working parent feels like they are receiving substantially less time with their children, in addition to having to deal with the inconvenience of working with the right of first refusal on a daily basis during their assigned visitation. Not to mention the potential ramifications this arrangement could have on a subsequent motion to modify the custody arrangement based off of the new reality of the visitation schedule now in practice (as opposed to that disclosed in the stipulated decree).

Before agreeing to a right of first refusal, and subsequently including it in any stipulated divorce decree, you need to have a detailed conversation with your legal counsel about the current and future ramifications of the application of the right of first refusal. Again, a poorly conceived right of first refusal can lead to substantial amounts of additional conflict between the parents, which is not ideal for anyone.

For more information about family law and your rights of first refusal, or if you should have one in your divorce decree, contact the Goosmann Law Firm at info@goosmannlaw.com or call 712-226-4000.