The term “right of first refusal” has its origin in contract law. For example, if a tenant has the right of first refusal, before the owner can sell the property, the tenant must first be given the opportunity to purchase it before the owner can sell it to anyone else.
When parents have the right of first refusal in their parenting plan (or if the court orders it), if one parent, during the time the children are in that parent’s custody, is unavailable to care for the children, that parent must first ask the other parent to care for the children before finding alternate care for the children.
We often prefer to call this the “first right to care for the children”. For parents who get along this may not need to be written in the settlement agreement. It is simply something for the parents work out between themselves.
If a court order is required, or if it is written into an agreed-upon parenting plan a timeframe of triggering the first right of refusal is often included. An order granting parents the right of first refusal often reads, “If either parent will be unavailable to the children for a period of more than [x-amount of time] that parent shall notify the other parent at least 24 hours in advance and provide the other parent the opportunity to care for the children during the period of time the custodial parent will be unavailable.”
The amount of time the custodial parent must be away before the right of first refusal is triggered is typically negotiated between the parents. Often the trigger is when the custodial parent needs overnight care for the children, but it can be less time, such as a 4-hour period, particularly for younger children.
How a Collaborative Divorce Helps with Parenting Issues and Right of First Refusal
In a Collaborative Divorce, professionals assist parents in formulating their parenting agreement. Parents often like to include the right of first refusal in their settlement agreement. They can also include in the agreement whether there will be makeup time and, if so, how make-up time will work.
Our attorneys at Chase, Berenstein and Murray, Counselors at Law can discuss with you child custody and visitation and how best to approach the “first right of refusal” issues you may face in working out childcare with your children’s other parent. Contact us online or by calling 650-642-3897 to schedule a confidential consultation.