Understanding First Right of Refusal in Custody Disputes

The first right of refusal is outlines caregiving priority when a parent is unavailable during their timeshare to provide physical care for children. The first right of refusal usually has a period which varies based upon the specific circumstances of the case and may include, but is not limited to, the age of the children, distance between the parents (timeframe to retrieve the children), work schedules, etc.

For example purposes, P1 is the parent who has custody and needs an alternative caregiver, and P2 is the parent who is being requested to provide caregiving for the children.

The first right of refusal is broken down into specific parts as follows:

1. The Order states the period of time when the offer of first right of refusal must be given. When first right of refusal is adopted, we typically see time periods of four (4) hours or more.
2. P1 is going to be unavailable for five (5) hours. The reason is not important and does not need to be disclosed to P2. The period could include P1 being unavailable for an extended period such as a work trip or vacation.
3. P1 sends communication to P2 that he/she will be unable for a certain period of time under the Order.
4. P1 asks P2 if he/she wants to provide caregiving for the minor children.
5. P2 then either agrees to provide caregiving or informs P1 that it is not possible. P2 is not required to provide caregiving.

What happens if the other parent is unable to provide caregiving under the first right of refusal?

If P1 asks P2, and P2 is unable to provide caregiving for the children then P1 is allowed to find an alternative caregiver unless the Order states otherwise. Remember, P1 should always give P2 the information for the alternative caregiver- name, telephone number and address. This is for information purposes only, but to also ensure that P2 knows how to reach the minor child in the case of an emergency.

Does P1 get make-up time if he/she has to invoke the first right of refusal?

Unless the Order states otherwise or the Parties agree, P1 typically does not get make-up time because P2 provided caregiving for the minor children.

It is important to know that when there is high conflict, most Judges do not adopt the first right of refusal because it requires a high level of cooperation between parents. When there is high conflict, the level of cooperation needed for first right of refusal most likely is not occurring. The first right of refusal can also be used as a manner to initial litigation which the Court wants to avoid.