What Is a Right of First Refusal in Family Law?
By: Brusca Law
So often clients ask what a right of first refusal means in the context of a family law case. Judges and Mediators use the lingo all the time, and clients are left in the dark because they just do not know it when they see it, and they do not understand the ramifications of the provision. Right of First Refusal provisions may be within your parenting plans and you may not even know it because usually the provision is not described as a “right of first refusal”.
Right of First Refusal Provisions are agreements between the parties, not hopes or possibilities. You must understand that when you agree to these provisions you must abide by them, and failure to do so may result in contempt proceedings and possibly attorneys fees awarded to the other side.
So often, litigants signing these parenting plans do not understand that by signing the parenting plan you are agreeing to do certain things and a Right of First Refusal Provision in particular places an enormous burden on you and the freedom you exercise with the children when they are in your care. These provisions are not for every family, and if you have a high conflict relationship with the other party, these provisions may be a very bad idea. Speak with Brusca Law to find out if these provisions might work for you.
The following are examples of right of first refusal provisions commonly used in parenting plans. The following provisions are not condoned by Brusca Law as good examples, nor are they intended to be legal advice, but they are common examples you might see in parenting plans. Know before you sign, and read on to learn more about some of the common variations people use in their parenting plans:
Sample #1: “If either parent will be unavailable to the children for more than 12 hours or overnight, that parent shall notify the other parent 24 hours in advance and provide the other parent with the opportunity to care for the children during the period of time that the custodial parent will be unavailable. If the other parent is not available or cannot exercise this right of first refusal, the custodial parent shall be responsible for arranging for the necessary child care for the child.”
Sample #2: “In the event either parent is unavailable to personally watch the children for a time period of three hours or more (not including school, summer camps, or visits at the maternal or paternal grandparents’ homes), the party unable to care for the children during this three hour window shall immediately inform the other party of the availability of the children and coordinate delivery of the children if both parties agree.”
Sample #3: “The child shall not be left in the care of any third-party child care provider, including but not limited to a babysitter, part-time nanny, friend, girlfriend or boyfriend, fiancé, should the other parent be available and willing to watch the child. The parties shall communicate about any third party scheduled to watch the child with the other parent, and shall provide notice as soon as it becomes apparent that third-party care will be needed for the child. The parties shall work together in good faith to ensure the child is cared for by both parents as much as possible, and use third-parties only in an emergency.”
Sample#4: “The Mother works as a nurse and it is anticipated she will work overnight shifts. In the event she works an overnight, the Father shall be notified and the child will remain with the Father while the Mother works overnight. The Mother shall provide her work schedule to the Father as soon as it becomes available to her so that he will have advance notice of the overnight schedule he will have during the Mother’s regularly scheduled time-sharing. As long as the Mother does not work more than 2 overnight shifts per week, the overnights the Father will have as a result of this provision will not be used in calculating any child support modification in the future solely based on this provision.”
Sample #5: “In the event either parent is unavailable to personally watch the child for a time period of six hours or more, the parties agree to first offer the right of first refusal to the maternal and paternal grandparents, in that order. In the event the parties are unable to mutually coordinate alternate transportation for the child to get to the grandparents’ homes, the child shall remain with the Mother or Father and this provision will not apply.”
Brusca Law Can Help
Co-parenting after and during a divorce can be trying, and stressful, and especially so if there is a provision within the Parenting Plan that does not work for your family. Know when to have a Right of First Refusal and when not to agree to this provision and speak with attorney Lauren Roderick Brusca at Brusca Law. To learn more, or speak with Brusca Law at 407-501-6564.