What is the “Right of First Refusal” in custody cases?

The Right of First Refusal is a clause that many parents include in custody agreements.  The provision requires that the custodial parent, if she cannot be with the children during her scheduled time, must first offer the other parent the opportunity to be with the children before seeking third-party childcare assistance. 

For instance, let’s assume Mom is scheduled to have custody of the children Thursday through Sunday.  However, she has a work event on Thursday night that she must attend. Rather than calling a babysitter to watch the children on Thursday night, she must first reach out to Dad to let him know that she cannot be with their children during her scheduled time and will need to call a babysitter. If Dad is free on Thursday night, he has the option to spend the time with the children in lieu of a babysitter.  Dad is not obligated to take the time, of course.  The Custody Order assigns the time to Mom and not to Dad, so he has no obligation to be there on Thursday night.  However, if he is free and wants to take the extra time, he can do so with the Right of First Refusal.

The Right of First Refusal is important for several reasons.  First, it helps to give each parent as much time as possible with their children.  Also, importantly, the provision allows for the parents to be the first choice to watch children in lieu of babysitters.  Depending on the parents’ relationship with one another, the Right of First Refusal can help encourage co-parenting and better communication.

There are some things to consider before adopting the Right of First Refusal in your Custody Order.  First, and paramount – is the extra time in the best interest of your children?  Secondly, is the relationship between you and the other parent healthy or will the additional obligation to communicate more frequently put a strain on an already difficult relationship?  Finally, some parents actually use the Right of First Refusal provision to harm the other parent in court or to keep track of how often the other parent has conflicting obligations.  In cases where the other parent is spiteful, instituting the Right of First Refusal may not be in the best interest of your children.  We always ask our clients to consider their personal relationships within the family when making a decision about whether to add the Right of First Refusal to the Custody Order.

In Pennsylvania, custody agreements can be modified. Therefore, if your Custody Order does not include the Right of First Refusal and you think it would benefit your children, we can help you modify the Order to include it.