What Is a First Right of Refusal in Child Custody?

A common question people have is, what is a first right of refusal in child custody?

When parents break up, they must continue cooperating with one another as they attempt to manage each parent’s time with their child. In Texas, they usually schedule time with the child, also called parenting time, in an agreed-upon parenting plan. However, one parent with scheduled parenting time sometimes has a conflict or an emergency at work, which necessitates arranging childcare from a friend, relative, or babysitter.

With a right of first refusal in a child custody agreement, the other parent must be given the opportunity to care for the child when a conflict arises in a regular parenting schedule. A right of first refusal isn’t for everyone. Below, the family attorneys at The Larson Law Office describe the many issues involved with a right of first refusal in a custody agreement.

Right of First Refusal in Child Custody Defined

The first question you may have is, What is the right of first refusal in child custody agreements? A right of first refusal in the child custody context means that when a parent needs childcare during their regular parenting time, they must first offer the opportunity to the other parent before seeking outside help. 

In a child custody case—called a conservatorship case in Texas—parents typically create a parenting plan which, in part, establishes a schedule of when each parent will spend time with the child. If a parent has a conflict or needs child care during their scheduled time, they make arrangements on their own. However, when there’s a right of first refusal, that parent must ask the other parent if they can take the child before reaching out to a babysitter or relative. The idea is that it gives the child’s parents more parenting time.

How a Right of First Refusal in a Child Custody Agreement Works

You may wonder what the right of first refusal practically means in a child custody case. When either parent needs childcare during their regularly scheduled parenting time, they must first offer the opportunity to the other parent. If the other parent declines, then the parent with the childcare issue can make arrangements with a babysitter, family friend, or relative. 

Depending on the specifics of your agreement, you may have to do this for both last-minute childcare issues and planned events. For example, you may have plans to attend a relative’s wedding in three months. Or, perhaps your job calls you in to work at the last minute. You may first have to call your child’s other parent to see if they can babysit before contacting anyone else.

A right of first refusal in a child custody agreement is not a legal requirement in Texas. However, you and your lawyer may consider including one if it works best for your family.

Advantages to the Right of First Refusal

One of the primary reasons parents use a right of first refusal is because it allows them the chance to spend more time with their child. The parent seeking child care may save on paying a sitter if the other parent can watch the child. 

Another advantage is that it allows parents to make minor, impromptu changes to a parenting plan without court intervention. Normally, if a parent wants to change a parenting plan, they must go to court and request a modification. However, a right of refusal allows parents to make minor tweaks to a parenting plan as needed, allowing for more flexibility.

Disadvantages of the Right of First Refusal

One disadvantage is that the right of first refusal will not work correctly if the parents can’t coordinate with each other. If the parents are hostile or cannot communicate, then it will be difficult for them to coordinate these potential schedule changes.

Additionally, sometimes, one parent feels that the other parent is taking advantage of the right of first refusal. For example, your child’s parent may frequently make last-minute plans and expect you to take care of the child. You may feel like you’re at their whim and feel guilty if you say no. 

This is why you and your child’s other parent must communicate well if you want a right of first refusal. It’s also important to ensure that the right of first refusal is well drafted with specific parameters so neither parent feels unclear on the requirements.

Drafting a Right of First Refusal 

If you are considering a right of first refusal, you must first honestly assess whether you and your child’s other parent will be able to communicate effectively with each other. Significant conflict or poor communication skills will make this nearly impossible. 

Next, you should clearly define the right of first refusal, so neither parent is confused or feels burdened. Issues you should consider addressing include the following:

• A minimum amount of childcare time: You may state that the right of first refusal only applies when either parent cannot care for the child for a certain number of hours or more. This will prevent you from having to coordinate with them for a quick trip to the grocery store, for example.
• Advance notice: Some agreements require that the parent give the other parent notice in advance, like 24 hours. It may be longer notice for a more extended period of care.
• What happens when the co-parent is unavailable: You should also specify what happens when the co-parent isn’t available or doesn’t respond to a right of first refusal offer. For example, it may say that if you don’t hear back from the other parent within a certain period, you can make alternative arrangements.

You should discuss your concerns with your attorney to ensure that the first right of refusal in the child custody agreement is clear and manageable. 

Contact Our Office for a Right of First Refusal in a Child Custody Case

Negotiating a right of first refusal, a parenting plan, and any other custody issue can be complicated. You may need attorneys who will take the time to understand your specific situation and craft their representation to meet your needs. Fortunately, the client-centered approach is the heart of our practice at The Larson Law Office.

Plus, with our experience litigating Texas family cases, you’ll rest assured knowing that you have knowledgeable and skilled attorneys by your side. Contact us today.