Integrating a right of first refusal into your parenting plan

If you are divorcing or otherwise separating from your child’s other parent, including a “right of first refusal” (ROFR) clause in your parenting plan may be wise. This provision offers each parent the opportunity to care for their child before other caregivers are called in when the other parent cannot be present during a portion of their scheduled parenting time. 

Essentially, a right of first refusal clause requires a parent to offer the other parent the opportunity to care for their child before turning to a third party, such as a babysitter, relative, significant other or daycare provider. 

Implementing this approach 

One of the potential benefits of incorporating an ROFR clause into your parenting plan is that it can increase the time that both you and your co-parent ultimately spend with your children. Instead of relying on a third party, your child can benefit from extra time with a parent. This can be especially important if one parent has limited scheduled parenting time.

With that said, this clause can only be effective if it is constructed in ways that don’t lead to unnecessary tension, confusion and/or muddled expectations. While the basic concept of an ROFR is straightforward, a clause can be customized to meet the specific needs and circumstances of each family. Some factors to consider when drafting an ROFR clause include:

• Duration of absence: Parents can specify how long each must be unavailable before the right of first refusal is triggered. For example, it could apply only if a parent is unavailable for a certain number of hours or overnight.
• Notification requirements: A parenting plan should detail how and when a parent should be notified of the opportunity to take over care. Clear communication methods, such as texts or phone calls, should be agreed upon to avoid misunderstandings.
• Logistics and distance: In some cases, geographical distance between parents can make exercising the right of first refusal impractical. In such cases, a parenting plan can account for travel time and logistics, allowing flexibility if the other parent cannot reasonably take over care right away.

While an ROFR clause has many benefits, it can also lead to disagreements if it isn’t implemented thoughtfully. Seeking legal guidance before trying to integrate this approach into your co-parenting arrangements is, therefore, generally wise.