What is the right of first refusal? July 26, 2016

Do a Google search on the “right of first refusal” and you will find numerous articles from the state of Illinois. Illinois is considering enacting a law requiring the right of first refusal in child custody cases. This has created quite a controversy among legislators, lawyers, and parent facilitators. But why?

What is the right of first refusal?

The right of first refusal (ROFR) is a phrase that many people have heard before as it applies to a number of things. In the context of a child custody case, the ROFR applies when a parent, with possession of a child, will be away from the child. That parent must notify the other parent of the intended absence and offer the other parent the right to take the child during that period of time.

On the surface, this seems like an excellent idea. If you’re going to be away, isn’t the other parent the best person to keep the child? In theory, that may be true, however in practice, there are a number of problems with the ROFR.

It invites prying

With the ROFR, the other parent has grounds to know your schedule. Your ex has a court-ordered right to know where you’re going, when you’re going, and how long you’ll be gone. Moreover, the other parent has reason to question what you’re doing and with whom.

Imagine being newly divorced and having to inform your ex that you are going out one Friday evening. True or not, your ex is going to assume you’re going on a date. This can lead to jealousy and resentment.

The ROFR gives your ex an invitation to keep tabs on you. If your ex disagrees with your choices, your ex may take you back to court to modify the custody order. The prying can actually lead to more litigation and conflict.

Now would be a good time to note that you should never agree to an ROFR if you have been a victim of domestic violence, harassment, or stalking. Likewise, if your ex is a narcissist, jealous, or controlling an ROFR is not a good idea.

It interferes with other relationships

What if you want your child to spend the week with your parents? Shouldn’t you have that option? With an ROFR your child could not spend time with grandparent without running by you ex first. Likewise, your ex would have to basically consent to sleepovers with friends, camps, play dates, and the like. The good news is these types of situations can be carved out of the ROFR. But how many other situations may arise that you didn’t anticipate and carve out.

It can undermine a good co-parenting relationship

Parents who co-parent well do not need an ROFR. If you have a good relationship with your ex, you’ll give the ex additional time with your child. The ROFR leads to snooping, resentment, and mistrust on both sides. The idea of giving your ex extra time becomes repugnant and does not happen.

Limit the Right of First Refusal

In my experience, few, if any, judges like the ROFR and will not order it for the reasons discussed above. I generally advise clients against agreeing to an ROFR. But sometimes they want one anyway. If you are going to agree, make sure it’s limited. As discussed above, certain events and activities can, and should, be carved out. Family members, including stepparents, should be exempt. And a minimum period of time should be established. In other words, the ROFR should only apply if you are away to eight or more hours (or whatever amount of time is appropriate).

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