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Right of First Refusal, Part One: What Is It and How Can It Backfire?

The concept sounds perfectly rational—good, in fact—in theory. If both parties in a divorce settlement understand the agreement and potential results therein, a “Right of First Refusal” within a decree can be a positive.

First, What Exactly Is the “Right of First Refusal”?

Simply put, if a parent in possession of the child(ren) will be absent for an agreed-upon length of time—eight hours to overnight are common demarcations—the parent in possession will, in good faith before seeking alternate child care, offer that time to the parent not currently in possession. Thus, the parent not in possession has the “right of first refusal”—the first right to say "no" (or yes) to possession before anyone else enters the equation. If the answer is "no," then the parent in possession is free to pursue other means of supervision.

The idea is this, “If I am unable to be with my child, who better than his or her other parent?” 

Sounds straightforward, right? Not necessarily.

Is a "Right of First Refusal" a Good Idea?

Many divorcing couples while drafting agreements say "yes" to a right of first refusal if one party requests it without thinking too much about it precisely because it sounds reasonable. And it can be. Until it isn’t.

Things can become murky quickly. What is clear as day, though, is what is written in black and white in the decree.

Divorce is difficult. Spouses find themselves angry, hurt, sometimes irrational, demanding, or unforgiving as the process unfolds. It can be precarious to agree to customization outside of the standard provisions because it can lead, even unconsciously, to a wounded spouse taking out resentment in ways that seem nonsensical. When a party feels unheard, mistreated, and/or marginalized, creating unnecessarily difficult or ugly interactions can be an off-kilter struggle to punish the ex or to right what is perceived as an imbalance of power.

Over the years, I have personally seen the right of first refusal cause glitches in ways unforeseen. Some spouses insist the time period be two to four hours instead of eight or overnight, for instance, and the other agrees without thinking it through.

What if someone is running late, a meeting goes long, or a child is invited to a sleepover? Does that mean, because the time period will be longer than what was agreed to or anticipated in the right of first refusal, that the parent not in possession picks up the child in the morning from a friend’s house on what was supposed to be the other parent’s “time”? Or what if exes decide to agree on the alternate caregivers, Grandma and/or Aunt Sue are listed, which works perfectly, until one party gets remarried and the new spouse is not written in (hopefully because no one knew of this person’s existence back when the decree was set forth)? If a parent must go out of town unexpectedly, must his or her new spouse cede possession to the ex because the allotted time has elapsed by the time tomorrow morning rolls around?

Or consider the client convinced that the ex is going out too late or too much, exposing the children to their new single life too early? It is not unheard of for a PI to be hired and stationed in a car on the street outside the house for a cozy stakeout—the stopwatch starts the moment the party pulls his or her car out of the driveway and clicks off upon his or her return. And if the spouse is indeed “proven” to have gone over the agreed-upon number of hours? Is this worth the cost of a hearing, attorney fees and emotional upheaval, a worthy issue to bring before the judge, or even enforceable in court for defying the decree?

Only when a party flagrantly disregards the right of the first refusal recklessly or repeatedly and said behavior can be proven (which is extremely difficult to do) will it yield any practical remedy in court. Even then, it is no slam dunk. What it can be is a dangerous precedent. A stick-it-to-ya gotcha litigious existence can be launched, wherein ex-spouses feel compelled to spy and tell on each other. The cost of a loss of good faith can be steep and endless. Nor is it a good model for children.

Can a "Right of First Refusal" Be Changed?

Yes, if exes are reasonable, amendments or additions to a decree are relatively simple—add a clause that states when the custodial parent travels, the child can stay overnight with the new spouse. Done. Clarify that sleepovers are exempt from the right of first refusal and alternate caregivers are up to the discretion of the parent in possession. Simple.

But better yet, do it the first time around, because there is always the chance that an ex will be steaming about another part of the settlement and might allow negative feelings to enter a right of first refusal situation. "Reasonable" isn’t a word that leaps to mind when enduring the dissolution of a marriage. There is, after all, a reason the divorce is happening.

Don’t get me wrong. The right of first refusal has its place. At times situations exist wherein the concept is incredibly useful. Just be aware that it can also become complicated, like everything else with divorce, and it does both attorneys and their clients well to think it through together carefully and judiciously.