IS THE RIGHT OF FIRST REFUSAL AN OPTION?


An issue for most people is who will watch the children while your former spouse is not at home. For your family the best choice might be what is called the “right of first refusal.” What that means is that when your former spouse is unable to watch the children for whatever reason, be it work, or some other issue, you are seeking that they inquire as to whether you can watch the children before they employ a babysitter or another family member. While this might seem like an obvious solution, it may present problems.


On a practical level, what you are seeking is that you and your ex-spouse contact each other every time childcare becomes an issue. This may or may not be realistic. Once you are divorced, communication may or may not be desired or you or your ex-spouse may not want the other to know what is taking place in the home. What if you or your former spouse remarries? Do you expect that despite another person in the house who can watch the children each other must be contacted first?


If you think that this is truly in your family’s best interest, then you can set a minimum time limit before each other is contacted. For instance, the two of you can agree that if either one is gone for more than 3 hours, the other shall have the right of first refusal. This might alleviate some problems that may arise for you and your ex-spouse having to contact each other each and every time you need to leave the children alone. Also, keep in mind the distance between the two houses. You may be subjecting your children to significant time in a car to effectuate this right of first refusal. You can agree that if the car ride is more than 20-30 minutes the right of first refusal does not apply.


Ultimately, divorce requires an adjustment of lifestyles, and it may not be in the children’s best interest for you or your former spouse to be the go-to person for childcare. Of course, each case is different and will be driven by the facts of your individual case. Discuss the matter with your attorney and see if the right of first refusal is a viable option for you and your family.

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