Right of First Refusal

Oftentimes during divorce or a child custody case, parents want to know what happens to the child when the other parent must leave the child during that parent’s period of possession. Does the child go to a babysitter, grandparent’s house, a friend’s house, or do the children go to the other parent?

The short answer is that when it is a parent’s time with a child, that parent is able to designate someone to watch and care for the children in their absence. The other parent (the one not in possession of the child) does not have a say in the absent parent’s care. Sometimes parents do not think this is fair – they want to be first on the list to watch the child if something comes up.

In family law, this concept is called a “Right of First Refusal.” Essentially, this is a provision in a temporary or final order that requires one parent to offer the other parent the opportunity to care for the children before seeking outside assistance or childcare services. That means that if a parent is unable to take care of the child during his or her designated time, they must first offer the other parent the chance to care for the child before making other arrangements.

If you are in an ongoing divorce or child custody case, you may want to consider adding a right of first refusal to your order. Call (832) 781-0320 for more information.

How Do I Get a Right of First Refusal?

In any family law case involving children, there will either be a Temporary Order or inevitability, a Final Order.

• A Temporary Order tells the parties how their agreements or orders impact conservatorship, possession and access, and child support during the pendency of their family law case.
• A Final Order is the order that concludes a case and lays out the agreements or orders on children’s issues. The type of Final Order you have will depend on the type of family law case you are involved in. A Final Order in cases involving children can be a Final Decree of Divorce, an Order Affecting the Parent-Child Relationship, or an Order Modifying the Parent-Child Relationship.

A Right of First Refusal is nowhere to be found in the Texas Family Code. It exists by virtue of family lawyer's creative minds and common practice. The only way to ensure that a Right of First Refusal is in your Temporary Order or Final Order is by reaching an agreement with the other parent. Since there are no provisions in the Texas Family Code concerning a Right of First Refusal, a Court will likely not order one if your case is before the Judge.

What does a Right of First Refusal say?

Since there is no law concerning the Right of First Refusals, the terms can vary depending on the needs and circumstances of the children and parents. Typically, a Right of First Refusal will require a parent to notify the other in writing or by phone if they are unable to care for the children during their designated possession time. It also cuts both ways – meaning both parents will have to notify the other if they are going to be away from the children. It is not just for one parent against the other, unless of course that is agreed too.

If the other parent is available and willing to care for the children during a parent’s absence, they are given the first option to do so. If the other parent is unable to care for the children, then alternative arrangements may be made.

Hour Limitations

Oftentimes there will be a designated hour that the parent will be away from the children. For example, it could be that if a parent is away for four hours, he or she must notify the other parent. It could also be eight hours, twelve hours, or even twenty-four hours.

It may be impractical to have a one hour Right of First Refusal. If that were the case, anytime a parent must run to the store or the doctor, they would be required to notify the other parent before making plans. It is best to think logically and logistically before agreeing to a short hour Right of First Refusal.

Spouses, Grandparents and Blood Relatives

It is important to note that unless you add exceptions to the Right of First Refusal, you may be boxing yourself into an agreement where family members or friends cannot assist you.

If you anticipate remarrying after divorce, have already remarried, or live near relatives, you should take into consideration these facts. If you have a Right of First Refusal that does not make an exception for your spouse or blood relatives to care for your child in your absence, you may be required to notify the child’s other parent before allowing family or your spouse to take care of the children.

By carving out an exception for blood relatives or your spouse, you can ensure that you still maintain control of your children without having to alert the other parent of your absence. In the example above, if you have a carve-out an exception for blood relatives and current spouse, you will not have to alert the other parent that you’re leaving or running errands.

Pros and Cons of the Right of First Refusal

There can be several pros and cons to the Right of First Refusal. The most significant benefits include:

• Consistency and Stability: By having a Right of First Refusal, the other parent is always the first option before babysitters, daycare, or other childcare programs. This can promote consistency and stability for the child knowing he or she will usually be with one parent. This can also help reduce the child’s stress or anxiety knowing they are cared for by the other parent or trusted relative.
• Parental Involvement: The Right of First Refusal will promote both parents being involved and communicating with each other. This requires parents to speak with one another about the child’s care. When both parents are communicating and working together, this is significantly beneficial to the child’s overall wellbeing.
• Reduced Expenses: It’s no secret that childcare can be expensive. A Right of First Refusal can help reduce the costs of any childcare services by allowing the other parent to have possession of the child at no cost. This can be especially beneficial for families with limited financial resources.

While the Right of First Refusal has its benefits, it is also important to acknowledge some of the limitations:

• Geographic Limitations: Depending on the terms of the Right of First Refusal, it may be impractical to implement given where the parties reside. If one party lives in Houston and the other lives in Austin, a Right of First Refusal may not work properly because of the distance between the parties.
• Demanding Scheduling: If one party has an incredibly demanding schedule, the Right of First Refusal may burden the parent without the crazy schedule. The parent who is constantly taking the busy parent’s time may start to resent the other parent, especially if they are constantly exercising the other parents time or taking care of the children more than is required of them.
• No Ability to Co-parent: If parents are already struggling to co-parent together, a Right of First Refusal may not be in a parent’s best interest. It requires honesty and an ability to work with the other parent. If that is lacking, the Right of First Refusal will likely not be successful.
• Lack of Enforceability: The Right of First Refusal can be difficult to enforce. A parent must be honest with the other parent that they are going to be away for the time required by the Right of First Refusal. Oftentimes, parents may not be honest with the other. To show the Court that a parent was dishonest and not following the Right of First Refusal, it requires proof – proof that the parent was not in possession of the children and someone else was. This can be difficult to show.

How Do I Know if a Right of First Refusal is Right for Me?

The Right of First Refusal can be appropriate in various circumstances depending on the needs of the children and parents. If there is a risk that the child may be placed with unqualified caregivers or strangers, it may be worth considering a Right of First Refusal. If you trust the other parent’s judgement, it may not be necessary.

A Right of First Refusal could also be appropriate if one parent has an unpredictable schedule or works long hours. Similarly, if one parent frequently travels or has many commitments that take them away from their designated possession, a Right of First refusal may be a good idea.

Overall, a Right of First Refusal can be a great thing to have. To learn more about if it is right for you, contact one of our knowledgeable attorneys to discuss the pros and cons of one in your case.