Navigating the First Right of Refusal

first right of refusalOne of the hardest concepts for me to grasp during my divorce was the first right of refusal, also sometimes called the right of first refusal. This is the rule that the timesharing parent, if called away from the kids for a specified period of time, must offer the other parent the opportunity to spend time with the kids instead of using a grandparent, a significant other, or a babysitter. First right is not, however, automatic; it must be written into your divorce decree.

When my lawyer first raised this issue, my knee-jerk reaction was “I want to have time with my kids whenever possible. Period.” After all, I was already surrendering fifty percent of the time with my kids to my former spouse so, if there was ever an extra opportunity to see them, I wanted it. Period.

This seems to be the natural reaction for many of us. But there are factors to consider when making this decision that the lawyers never seem to share with their clients. My real-life experiences have definitely changed my view.


First Right of Refusal Goes Both Ways


First, the first right of refusal goes both ways! While I initially thought a shorter time frame to invoke first right of refusal might seem like a good idea, it can actually be a burden. Consider not only what you want from your ex, but also what you’re willing to be obligated to do yourself. Do you want to have to call your ex just so that you can have dinner with a friend? Do you want to involve him or her every time the kids want to sleepover at a friend’s or relative’s?

playing with child first right of refusalYou may believe that you will plan your life for when the children are with their other parent. So, this won’t apply to you. Am I right? I felt that way. I was going to live my life around my timesharing agreement. Cue the laughter.… Life does not work that way. There will be special occasions that pop up during your scheduled timesharing. There will be events that the kids want to attend on their own during your timesharing.

For example, I have a no-kids-allowed wedding for a friend approaching. With a shorter first right of refusal, I would have to offer timesharing to my ex-husband. But why? I will be away maybe five hours. During that time, I can plan for them to have a sleepover at their friend’s house. Their schedule will not be disrupted, and they will have fun with a friend during my timesharing.

The alternative, if their father did accept his right to share time, would be far more disruptive. I drop them off in time for dinner and bedtime with their father. Then, I either pick them up after the wedding, interrupting their sleep, or the next morning in time to run them back home and get them ready for school.

They could have fun with a friend instead. I am glad we changed our agreement!

A shorter first right of refusal timeframe may also involve your ex more in your day-to-day comings and goings than you would like. Why should my ex-husband be obligated to contact me because he wants to go out with his friend on his birthday? Their stepmother is perfectly capable of caring for our kids, and I trust her to do that.

These are things to consider when determining a time frame for your first right of refusal. Just know that a right of refusal that is too stringent can create more problems that solutions.


Travel Time


dad traveling with kids first right of refusalConsider travel time to accommodate your right of refusal. For example, if you and your child’s other parent live 30 minutes apart and have a two-hour first right of refusal, consider your situation. You accept your right to share time while your ex goes to the movies. You drive 30 minutes in the car to retrieve your child. Another 30 minutes back with the child. You spend an hour and a half together before the other parent puts the child back in the car for the 30-minute drive back to their house. Now, each parent has spent one hour in the car, the child has spent one hour in the car, and the non-timesharing parent only enjoyed an extra 1.5 hours of timesharing. Depending on your circumstances, this may be worth it to you. But it is something to consider. It certainly does not seem fair to the child.


You Are Not Obligated to Accept Time-Sharing


In the beginning, every time my ex offered me timesharing, I accepted it, gleefully. I wanted to be with my kids as much as possible. I mean, what kind of mother would I be, if I didn’t, right? Initially, when I was trying to decide on the time-frame for our reciprocal right of refusal, the idea of sharing custody alone had my stomach in knots, much less allowing third parties to share time (“babysit”) my kids when their dad might be unavailable. But, looking back, what ended up happening was that I became an “on-call babysitter.”

first right of refusalDon’t get me wrong, he had every right to have a life, but so did I. I had a right to my “me” time. In fact, it is healthy to have “me” time. Instead, I still felt obligated to move my schedule around every time he offered.

And, p.s., ultimately, their father did not exercise his right to spend time with our kids nearly as often as I did. If something came up or I had to work, he was very clear. “It’s your day; it’s your problem.” I was left to figure it out on my own.

The more that I adjusted to the 50/50 timesharing life, the more I realized that I needed that “me” time and I deserved that “me” time. The truth is, you are not obligated to exercise your first right of refusal. You have shared custody for a reason. Ultimately, if you have work or plans, or even something else, it is the timesharing parent’s responsibility to provide childcare during this time.

So, when determining how to structure your family’s first right of refusal, consider what will be least disruptive to everyone. At the end of the day, you probably enjoy some version of shared custody. You can trust that your children will be safe with their other parent, even if you differ in your ideas regarding parenting. You should trust that the other parent will choose an appropriate child care provider, when necessary.


Consistency is Key


first right of refusalLastly, consistency is key in your children’s lives. They are already living in two households. Bouncing them back and forth unnecessarily to accommodate your first right of refusal guidelines can unintentionally create more inconsistency. Ultimately, the goal is to maintain a shared parenting arrangement that is in the best interest of your unique children. How to do this is best left to you and your children’s other parent.



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This week’s author Megan Dalrymple.

Megan joined Open Palm Law in 2017, bringing many talents with her. As someone who previously managed her own business, she brings to the table outstanding time management and Lori-Portrait-circleorganizational skills. Keeping her focus on the highest caliber of customer relations, she is always problem solving and ensuring the prosperity of our clients. Megan graduated from the University of South Florida in 2006 with a Bachelors degree in Criminal Justice. She went on to receive a post-baccalaureate certificate in Paralegal Studies from St. Petersburg College with a 4.0 GPA in 2017. Megan recently became a Certified Paralegal through the National Association of Legal Assistants. She is a single mother of two young girls and, in her limited free time, volunteers in her community and encourages her daughters to do the same.