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What is the Right of First Refusal anyway?

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A blessing and a curse, depending on your shared custody situation, the right of first refusal can have far-reaching consequences.

It is totally normal and natural for parents to need help with (or a break from) their kids on occasion by using daycare and babysitters, especially as a single parent.

When determining your shared custody agreement, it is a good idea to weigh the pros and cons of the right of first refusal in shared custody agreements to determine if it is a good option in your situation. 

What is the Right of First Refusal in Shared Custody Agreements?

When determining child custody agreements, oftentimes parents will ask for a right of first refusal clause.

This basically means if one parent is not available to have the kids during their scheduled time (based on an agreed-upon time limit, like 4 hours or longer), the other parent is given the chance to take the kids prior to another adult watching them or attending daycare. 

Both parents need to agree to the right of first refusal clause before adding it to the custody agreement, and it should always be in writing. 

If you are thinking about whether you should have a right of first refusal in your shared custody agreement there are pros and cons that should be weighed prior to making your final decision whether to include it or not.  

Who Should Use The Right of First Refusal?

When determining if the right of first refusal is for you, each party involved should evaluate the following points.

  • Do you and your ex effectively communicate with one another? If you communicate well, then this might be a great option so both parents get to spend more time with the kids. 
  • Do you co-parent effectively? If both parents care about the well-being of the kids and put their own feelings aside then the right of first refusal can be a really great option. 
  • Are both parents flexible? If both parents are flexible when it comes to the schedule then it really can be a benefit to all parties, especially the child. 
  • Do you live close? If both parents live close to one another to help each other out with pick ups and drop offs, the right of first refusal is a great option. If parents live hours apart, it is more difficult unless you plan ahead and are really effective when it comes to communication. 
  • Do you have a vindictive ex? Using the right of first refusal can be tricky, especially when your ex is vindictive. For example, if your child wants to go to your sister’s house (her aunt) to spend time with her cousins and have a sleepover, your ex can claim that you did not use the right of first refusal because the child was not in your care and you are withholding extra time being spent with them. 
  • Do both parents recognize the benefits of everyone being in the child’s life? Until both parents recognize the benefits of the child spending time with both parents the right of first refusal can be difficult to maintain. 

Who Should Not Use the Right of First Refusal?

There are certain situations when the right of first refusal should never be used. 

  • Is there a history of abuse? When your ex has abused you physically, mentally, or sexually it might not be a good idea putting this clause in the custody agreement. Sometimes seeing your ex so frequently will cause the abuse to continue far longer than it ever should or bring back unwanted memories of the abuse. 
  • If you live too far away. When you and your ex live too far away it is very difficult to have a healthy right of first refusal agreement. 
  • Addiction. If your ex suffers from addiction, it is a good idea to not put in place this extra clause. This helps protect your child from situations that might not offer the best environment for the child. 

Pros of the Right of First Refusal in Shared Custody Agreements

1. Spending More Time with Parents

One of the biggest benefits of the right of first refusal is the fact that your child gets to spend more time with their biological parents. The goal in any custody schedule is for both parents to spend as much time with their children as they can, so putting this clause into your parenting agreement can allow this to happen. 

2. Builds a Healthy Co-Parenting Relationship

Having a healthy co-parenting relationship is the key to a successful relationship when raising a child when separation is involved. This allows you to communicate with one another about conflicts in the parenting schedule and allows you to work through these in a very mature way. 

3. Nurtures Relationships

When you are able to spend extra time with your kids you are able to really nurture relationships with your children. You may have more time that you can spend with them one on one and talk about their thoughts, feelings, and concerns. As the relationship builds over time they will feel more comfortable talking to both parents when something is bothering them. 

Cons of the Right of First Refusal in Shared Custody Agreements

When you are newly divorced you might feel like there are more cons when having the right of first refusal in place in a shared custody agreement. 

1. Communication

The number one con is communication. If the other party is angry with you they might make it challenging to allow the right of first refusal to take place. For instance, if they know that they will be gone, they might wait until 5 minutes before and send a brief text letting you know that they are not available and you can have the kids. 

This makes it difficult to accept the right of first refusal because you would need to essentially drop everything and run to grab the kids. 

If separated couples cannot effectively communicate with one another the right of first refusal will only be a detriment to the kids. 

2. Does Not Allow Kids to Spend Time with Friends and Extended Family

Often parents ask extended family and friends to help out with the kids when they need some help with the child(ren). By adding this clause to the shared custody agreement, it can really limit these other relationships because the parent needing help is required to ask their ex first.

Is There an Alternative to the Right of First Refusal?

When you and your ex effectively co-parent and have healthy communication with one another, you can arrange to help one another out without a legal arrangement. 

You can create an informal agreement to make an effort to ask one another for help when needed with the kids, but yet still allow other relationships to develop with grandparents and friends. 

Is the Right of First Refusal Right For You?

When determining if this is the right path for your family, you need to weigh the pros and the cons for each party, especially the child(ren). If after weighing all the pros and cons and you determine this is what is best for the kids, then push to add the right of first refusal into your custody agreement. 

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P.S. Need advice on custody negotiations? Check out joint custody schedules.

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