The Right of First Refusal

parent and child

When couples with children begin divorce mediation, we generally begin with a parenting plan. The parenting plan for divorced parents includes much more than where the children will live and how and where they will spend the holidays.
A much negotiated issue in divorce mediation is what’s called the right of first refusal. This refers to the option to care for the children when it is not your scheduled parenting time. For example, maybe it’s one of Dad’s night with the children, but Dad needs to attend a business dinner. He has the option of asking Mom if she is free to be with the kids, or arranging for a babysitter. If Mom has the right of first refusal, Dad must ask Mom if she is free before hiring a sitter. Mom is not obligated to care for the children, but she has the option.
Many divorcing parents favor the idea of a right of first refusal in their parenting plan because it maximizes a parent’s time with their children. Sometimes, however, if divorced parents are not amicable, the right of first refusal can cause conflict. There are several reasons why:

• Divorced parents want their privacy

A parent who will be unavailable at his or her scheduled parenting time may not want to disclose that to the other parent. It may feel like an invasion of privacy to inform the other parent of their whereabouts.

• Some children of divorce do better with consistency

Parents may feel that the children do better with strict compliance to the parenting schedule created in their mediated divorce agreement. It is upsetting for some children to shift gears when they expect to be at one parent’s home and have to relocate to the other parent’s home.

• Divorced parents may argue about whether the right of first refusal was honored

Often the divorce agreement will provide that the right of first refusal only comes into play if a parent is going to be unavailable for a certain minimum period of time – four hours, overnight, etc. Sometimes the unavailable parent only plans to be out for an hour, but gets stuck in traffic. The other parent might feel that right of first refusal was not respected and be angry about not having had the option to be with the children.

When created a parenting plan, give serious thought to whether to include a right of first refusal in your divorce agreement. The benefit of potentially having additional parenting time needs to be balanced with the conflicts that might be created. If you choose to include a right of first refusal in your parenting plan, try to make it as specific as possible to avoid future misunderstandings. The most important thing you can do for your children is to minimize conflict.

About Vicki Volper

I am a divorce attorney in Westport who empowers people to divorce in a manner that maintains their dignity, preserves their assets and protects their children.
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