What is the Right of First Refusal in a Child Custody Case?
5 tips for creating a successful right of first refusal clause in your parenting plan.
- 5 min read
- guest author
- family law
- custody
When co-parents share custody, finding ways to make the most of parenting time is often a priority. Whether you plan special activities—trips to the zoo, a hike, a sports game—or simply want to enjoy a little quiet downtime at home, those moments spent together are valuable!
But life also happens—business trips, last-minute work calls, or even the occasional attempt at a social life (yes, parents are allowed to have one!). Many parents incorporate a “right of first refusal” clause into their custody agreement to avoid schedule conflicts and maximize time with their children.
How does the right of first refusal work?
The right of first refusal isn’t a built-in legal requirement—it’s entirely optional. If parents want to include this helpful parenting plan provision, they have to negotiate it as part of their agreement or get a court order based on the best interests of their child.
A right of first refusal provision states that when a parent can’t be there during their scheduled parenting time, they must offer the other parent the chance to enjoy parenting time before they make other arrangements.
However, it’s best to approach the right of first refusal with care. This clause works best when it’s structured in a realistic and enforceable way. If it doesn’t contain clear terms, it can create frustration or even more conflict, which is the opposite of its intended purpose.
To avoid these outcomes, parents should consider these three questions when pursuing a right of first refusal plan:
- How much time should pass before the clause applies? Will the right of first refusal apply to all absences or only if a parent is unavailable for a specific amount of time?
- How will parents communicate about scheduling? Will parents notify each other via text, email, or a co-parenting app, and how quickly must they respond?
- Does it apply to all absences or just work-related ones? Will the right of first refusal allow for personal plans (e.g., social activities or dating) or just when a parent works?
Now, let’s break these three questions down with real-life examples to help you understand how the right of first refusal works and what you can do to make it work best for your co-parenting situation.
1. How much time must pass before it applies?
Some parents prefer a more flexible approach, while others set clear limits on when the right of first refusal kicks in. For example, some agreements apply only to overnight absences, and others cover shorter gaps in care that are four hours or less. Consider how you want to balance routine, disruption, and flexibility in your child’s daily life.
Example: Olivia and Jordan
Olivia and Jordan co-parent their 8-year-old daughter, Emma, and have a shared custody agreement. The example below highlights how a well-defined threshold—or lack thereof—can change whether the right of first refusal applies in everyday situations.
- With a right of first refusal, if Olivia has a late work meeting that keeps her out past 7 p.m., she must offer the time with Emma to Jordan before arranging a babysitter.
- Without a right of first refusal, Olivia can schedule a babysitter without notifying Jordan, even if he would have wanted the extra time.
For some parents, a shorter threshold (e.g., four hours or less) allows for greater involvement. Others prefer an overnight-only rule to avoid frequent disruptions. If you want the restriction to be time-based, language choice is key. Using phrases like “no more than” before a set number of hours or defining a term like “overnight” can help clear up potential ambiguities or varied interpretations.
2. How will parents communicate about scheduling?
Good communication practices are invaluable in co-parenting relationships, especially when a right of first refusal clause is in place.
If parents don’t have transparent expectations around how they communicate (e.g., phone, email, co-parenting app) and how quickly they have to respond (e.g., 30 minutes, 1 hour, 24 hours), it can create a lot of frustration on both sides.
Example: Rachel and Jennifer
Rachel and Jennifer share joint custody of their two kids, ages 6 and 10. In their case, the success of the provision depends on how—and how quickly—they communicate about schedule changes.
- With a right of first refusal, if Jennifer has a work trip planned, she must notify Rachel through their co-parenting app at least three days in advance. Rachel then has 24 hours to accept or decline before Jennifer makes other childcare plans.
- Without a right of first refusal, Jennifer can arrange for a babysitter or family member without notifying Rachel.
Setting these expectations can make for healthy co-parenting boundaries, but it’s important not to treat this provision as an opportunity to micromanage the other parent. Co-parents should focus on cooperation, not control.
3. Does it apply to all absences or just work-related ones?
When it comes to parenting and co-parenting, not all absences are the same. Some parents limit the right of first refusal to work-related conflicts, while others extend it to all absences, including social outings and personal plans.
Example: Jake and Sophia
Jake and Sophia share custody of their 5-year-old son, Lucas. Their situation shows how the scope of a right of first refusal, whether limited to work-related conflicts or extended to all absences, can shape daily parenting rhythms.
- With a work-related-only right of first refusal, Sophia must offer Jake the time first if she’s called into work unexpectedly. However, she can arrange her own childcare for Lucas if she has personal plans.
- With a broad right of first refusal, Sophia must offer Jake childcare first any time she needs it, whether for work, social events, or personal errands.
- Without a right of first refusal, Sophia can use a babysitter or family member without notifying Jake.
Again, these provisions are highly specific to the families they apply to. It’s essential to have a practical conversation with your family law attorney about your needs and what’s realistic with your co-parent.
5 tips for making the right of first refusal work
Even a well-intended first refusal clause can cause friction between parents if not structured correctly. Here are helpful tips for making sure your right of first refusal addresses your family’s needs and contributes to a smoother co-parenting relationship:
- Be specific about when it applies. Define whether the provision covers all absences or only longer ones (such as anything over four hours or only overnight stays). Your attorney can help you add enough detail to be effective without overcomplicating or micromanaging.
- Determine the right communication method for your family. Agree on how you’ll notify each other—whether by text, email, or a co-parenting app like TalkingParents. Set a standard response time and the outcomes if no response is received.
- Set practical limitations. If your child has a long-standing relationship with a babysitter or close family member, you and your co-parent may agree that those situations don’t require notification under the right of first refusal.
- Think about logistics. If parents live far apart, offering the right of first refusal for a two-hour absence may not be realistic but may work for overnights.
- Focus on your child’s well-being. The right of first refusal should increase quality parenting time, not create additional stress. If enforcing it causes more conflict than benefits, it may need to be revisited with your attorney.
Clarity, communication, and practicality are at the center of a successful first right of refusal clause. But most of all, it needs to be tailored for your family. If you’re considering adding one to your custody agreement, consulting with a family law attorney can help you determine the best terms and negotiate for them.