The Right of First Refusal and Child Custody July 26, 2016

Do a Google search on the right of first refusal and you will find numerous articles from the state of Illinois. A law has been enacted there requiring the right of first refusal in all 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 — it can apply to a number of things, including child custody.

In the context of a child custody case, the ROFR applies when a parent with legal possession of a child will be away from that child “for a significant period of time.”

The custodial parent must notify the other parent of any intended absence that would require child care, and the custodial parent must offer the other parent the right to take the child during that period of time.

(You can read more about child custody laws in Texas here.)

It is based on the assumption that significant time spent with both parents is in the child’s best interest.

On the surface, this may seem 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.

The Right of First Refusal Is Poorly Defined

How long is that “significant period of time?”

Is it a number of hours, days, or weeks? How much time does the custodial parent need to be away to trigger the requirements of the right of first refusal agreement?

What if transportation costs associated with taking the child to the other parent’s place of residence are an unreasonable burden?

By what type of communication and how far in advance is notification required?

These are just some of the questions raised when the law requires the right of first refusal.

The Right of First Refusal 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. The ROFR gives your ex an invitation to keep tabs on you.

True or not, your ex is probably going to assume you’re going on a date — this can lead to jealousy and resentment.

If your ex disagrees with your choices, your ex may take you back to court to modify the custody order, leading 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.

The Right of First Refusal Interferes With Other Relationships

What if you want your child to spend the week with your parents? Shouldn’t you have that option?

If the right of first refusal is written into your child custody order, your child might not be able to spend time with a grandparent without running it by your ex first.

Likewise, your ex would basically have to consent to sleepovers with friends, camps, play dates, and the like.

While the good news is these types of situations can be carved out of the ROFR, how many other situations may arise that you didn’t anticipate and exclude?

It Can Undermine a Good Co-parenting Relationship

Parents who co-parent well do not need a ROFR. If you have a good relationship with your ex, you’ll give them additional time with your child.

In those cases, an ROFR can become a burden, straining the relationship — it can lead to suspicion, snooping, resentment, and mistrust on both sides.

The relationship could be damaged. Then, the idea of giving your ex extra time might become repugnant and wouldn’t 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 to trigger the ROFR should be established.

In other words, the ROFR should only apply if you are away eight or more hours (or whatever amount of time is appropriate).

Questions About the Right of First Refusal?

There are many possible drawbacks to the right of first refusal that most people would not normally consider.

If you are considering including the right of first refusal in your divorce settlement or custody modification and wonder how it would affect your situation, we suggest you consult our experts.

Our family law attorneys at Hayes, Berry, White & Vanzant can help.

For more information, please contact us here or call us at (940)387-3518.

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