© 2006 E. J. Kates
adapted from The Right of First Refusal: when is it reasonable?
http://www.thelizlibrary.org/liz/right-of-first-refusal.html

The Right of First Refusal in Parenting Plans
by Elizabeth J. Kates, Esq.

The "right of first refusal" is a provision sometimes placed in child custody agreements which requires one of the child's parents, who otherwise would have "timeshare" prior to placing a child into third party care (such as a babysitter) to first grant the child's other parent the right to care for the child during the period of the first parent's absence. In order to be workable, it must be carefully thought through by the parties, and just as carefully drafted by experienced family law counsel, or else it can risk creating and exacerbating disputes.

Twenty questions to ask when negotiating and drafting rights of first refusal in parenting plans:

1. Have there been substantiated stalking or domestic violence allegations made against the requesting party, whether or not same rose to a level that merited the issuance of a restraining order or resulted in a criminal conviction.

2. Has the parent requesting the right of first refusal in the past refused to take the child in order to pursue a voluntary or re-schedulable activity of lesser importance than that requiring the temporary absence of the requesting parent.

3. Has the parent requesting the right of first refusal, when given at least 24 hours' notice by the other parent, declined on multiple occasions to take the child, or to assist with or attend child activities for any reason.

4. Has the parent requesting the right of first refusal regularly exercised scheduled timeshare without repeated (more than two) late pickups or returns of the child.

5. Are the parents generally cooperative and friendly, and do they have confidence in each others' parenting ability, or has there been litigation alleging visitation interference or noncompliance, or parental alienation.

6. Does the parent requesting the right of first refusal occasionally use alcohol to the point of drunkenness or become impaired by other substance abuse even when that parent is not caring for children.

7. Bearing on assessment of trust issues going to the parties' perceived abilities to deal fairly with each other, has either party objected to or been recalcitrant in providing any litigation discovery or, conversely, charged the other parent with discovery abuse.

8. Do the parents live within a short drive from each other, in the same school district, or otherwise close enough (depending upon the occasion for which the right of first refusal is being sought), that the right of first refusal arrangements will not create a burden for either the child or the parent with timeshare.

9. If the requesting parent is the lesser time-share parent, is he or she suspected of seeking the right of first refusal to position him- or herself to seek additional timeshare via post-decree motions, and has the parent filed such motions in the past.

10. Has the requesting parent, if the payor, objected to a previously agreed or ordered amount of child support or alimony, and/or filed court motions seeking to reduce the child support or alimony, and is that parent using the request for a right of first refusal to position him- or herself to do so now.

11. Going to the assessment of trust issues involving privacy, have there have been allegations made at any time by one of the parents of the other's "snooping" into that parent's privacy, or serious issues between the parents either before or after separation or divorce involving jealousy, paramours, adultery, or dating behaviors.

12. Is the childcare right of first refusal being requested for time the other parent will be traveling overnight or regularly working, rather than for occasional evening or weekend time the other parent will be engaged in private social activities which that parent may not wish to have to disclose.

13. Is the right of first refusal being requested for regularly scheduled time that the child otherwise would be spending with nonrelative babysitters, in infant/toddler institutional daycare, or with stepparents and others with whom the child has no significant attachment (compared with the parent-child attachment).

14. Will the childcare right of first refusal, if granted and exercised, interfere with regularly scheduled school, preschool enrichment (educational preschool not in excess of 20 hours a week), or afterschool extracurricular activities of the child.

15. Will the childcare right of first refusal, if granted and exercised, interfere with visitation by that parent's own parents and other extended family (a "derivative visitation" which that parent is entitled to grant them during that parent's own timeshare).

16. Does the parent who is requesting a right of first refusal regularly place the child into nonparental (including stepparent) third party care, and will the requesting parent be personally minding the child if the right of first refusal is exercised.

17. Will an exercise of the childcare right of first refusal result in a reduction of income for the parent otherwise having timeshare of the child, inhibit the timeshare parent from pursuing reasonable career, educational, or social activities, create significant additional out-of-pocket expenses for that parent (for example, by changing a daycare arrangement from a lower monthly rate to a per diem or hourly rate), or result in the loss of needed regular caregivers or the necessity to pay for duplicate caregiving (for example, a loss of access to babysitting help when employment that was counted on diminishes).

18. Are the parents in unambiguous agreement regarding what circumstances will trigger the right of first refusal, and where the childminding will take place (such as in the residential or nonresidential parent's home if in the nature of and in lieu of short-term babysitting).

19. Are the parents in unambiguous agreement regarding the way the right of first refusal will be offered and accepted, and the method of notice and acceptance (such as by telephone, fax, or email), and the amount of notice time that will be required, i.e. is the right carefully structured so that it is functional and flexible, and so that it will not place the parent with timeshare under a burden that will interfere with that parent's ability to engage in spontaneous last-minute arrangements and activities.

20. Has the right of first refusal been thoroughly negotiated privately by two cooperative or collaborative parents, and then drafted by their lawyers, or has it been recommended or ordered by a custody evaluator, Guardian ad Litem, parenting coordinator, or judge, or drafted hastily by a mediator or litigating attorney under pressure to settle.

Elizabeth Kates has practiced law in Florida for nearly 30 years. She is a director of the National Network on Family Law Policy, and was a charter member and director of Collaborative Lawyers of South Florida, Inc. for eight years before becoming Vice President and Director of Collaborative Lawyers Inc. Collaborative Lawyers, Inc. is a state-wide educational and professional development association and business directory of independent Florida attorneys at law and family law firms who practice in the areas of collaborative divorce and collaborative family law.

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