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What is the Right of First Refusal?


In many custody agreements, parents include the “right of first refusal” clause in their parenting plan. Parents who include this clause, guarantee that when the parent, who has the children during a specific time is unable to watch the children, that parent must ask the other parent if they want the opportunity to watch the children, prior to finding alternative child care. By way of example, if a parent is called into work or has an event, that parent must call the other parent and ask if he/she wants to spend time with the children. If that parent refuses, then the parent who has work or an event can find someone else to watch the children.


If you choose to use this clause in your agreement, it is important to set a minimum time for when parents have the right of first refusal, as it will only apply after a specified number of hours or days. Let’s use a forty-eight-hour minimum as an example. You will be required to call the other parent and ask if he/she wants to watch your child if you will be away from your child for more than forty-eight hours. If you have this right, it does not mean that you are required to use it. If the other parent gives you the right of first refusal but you are unavailable that day or weekend, then you do not have to watch your child. While this clause is not required in any agreement, adding it to your agreement guarantees you will be able to spend additional time with your child should the other parent become unavailable.

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