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Understanding the “right of first refusal” in parenting plans

Divorcing parents have various reasons for wanting to include a “right of first refusal” (ROFR) clause in their custody agreement.

Sometimes the custody division is uneven, and the parent with less time wants every opportunity to be with their children. Maybe one parent (or both) doesn’t want their children left with babysitters, in daycare or even with another family any more than necessary. 

What is a ‘right of first refusal’ clause?

In custody and parenting plan documents, the right of first refusal (sometimes referred to as “first right of refusal”) requires each parent to give the other parent the option of taking care of a child before they ask anyone else to do it. 

Right of first refusal clauses can be used to ensure that a co-parent contacts their ex whenever they won’t be able to care for a child –- whether it’s due to a planned event in the future or a spur-of-the-moment situation like having to work late.

What specifics go into a ROFR clause?

You can negotiate whatever specifics you’d like to include in the ROFR clause. For example, maybe you only want to use it if the care would be for a certain number of hours or overnight. Perhaps you want a call even if it would require taking care of your child for 30 minutes. 

You may want to require a specific amount of notice, if possible, and the length of time allowed for response. However, it’s always best if co-parents can keep each other informed of tentative plans that may require a change in their usual schedule.

Your family law attorney can help you work out the language of your ROFR clause, as well as other important parts of a parenting plan. Working with an experienced advocate can make it easier not to overlook anything important.