Do I Need the "Right of First Refusal" in My Custody Order?

Do I Need the “Right of First Refusal” in My Custody Order?

During divorce, parents often establish a schedule that sets out how they will spend time with their kids. Generally, the expectation is that custodial parents will be with their children during their designated care periods. However, there can be situations when a parent may need to leave their children with someone else. Depending on the circumstances, you may or may not be comfortable with a third party watching your kids when your ex is away. If that is the case, you may want to consider adding the “Right of First Refusal” to your California parenting agreement. If you have not heard of this term, you may be wondering: Do I need the “right of first refusal” in my custody order?

What is the “Right of First Refusal?”

The “Right of First Refusal,” or ROFR, is a custodial term that gives the non-custodial parent the right to be offered a chance to watch their kids when the custodial parent will be unavailable. This parenting plan term usually applies mutually to both parents.

How Does the Right of First Refusal Work?

The right of first refusal requires that the custodial parent contact the non-custodial parent and give them an opportunity to care for their kids. Taken literally, the term would activate anytime the custodial parent couldn’t be with their children during their visitation period. However, in practice, the ROFR doesn’t usually become operative until certain conditions are met.

When Does the Right of First Refusal Become Active?

Ordinarily, the right of first refusal will not activate unless the custodial parent will be away for several hours or overnight. What “several hours” may mean often depends on what the parties negotiate in their parenting agreement. However, generally speaking, the custodial parent’s ROFR notification responsibilities won’t be invoked unless the parent will be away for at least 8 to 10 hours.

Being Careful with the Right of First Refusal

The ROFR can be an excellent way for parents to have additional time with their kids. Further, under the right circumstances, parents can use this term to support one another with their caregiving responsibilities. However, it’s important to recognize that the right of first refusal tends to work best for parents who can get along and communicate well.

Therefore, when developing the ROFR, the parties should consider:

  • How they plan to communicate. For example, will they use text messaging, email, or phone to exchange ROFR information?
  • How much time the custodial parent will need to wait for a response before arranging for child care.
  • How much time will elapse before the non-custodial parent must be contacted?
  • How much notice will parents be required to give one another when there will be an unexpected absence?
  • Giving notice to one another when possible. For example, if a parent knows they will be away, will they be required to tell the other party a certain number of days in advance?

When the Right of First Refusal May be a Problem

Generally, the parties agree upon or request the right of first refusal. However, this term can become problematic when parents have difficulty communicating or seeing eye-to-eye on co-parenting issues. Under these conditions, this potentially beneficial term could become one more reason for contentious parents to fight. While careful drafting may help prevent some issues, the ROFR may not be ideal for everyone.

Not having the right of first refusal doesn’t mean that parents can’t contact one another for child care; it just means they are not required to do so. Before committing to having the ROFR, it’s important to consider your and your ex’s relationship and ability to communicate with one another effectively.

Contact an Experienced California Child Custody Attorney

Child custody agreements and orders can be complicated, and it may or may not be in your best interest to add the right of first refusal. The best way to evaluate the ROFR and other key parenting terms is by working with an experienced California child custody attorney.

The attorneys at the Law Offices of Judy L. Burger are experienced California child custody attorneys who can help you assess the right of first refusal and other parenting plan terms and review your options. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.


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