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What is a “right of first refusal” when you share parenting time?

If you’re divorcing, even with the shared allocation of parenting time, you may not feel like you’re seeing your child as much as you’d like. Further, you may not be comfortable with the idea that someone you don’t know could be looking after them when your co-parent needs a sitter during part of their parenting time.

One way to deal with both issues is to seek a right of first refusal in your parenting plan. Your co-parent may want to do the same. Let’s look at what this means.

A typical right of first refusal scenario

If you and your co-parent have a mutual right of first refusal provision, it means that if either of you is unable to care for your child for part of your designated parenting time, you must give your co-parent the opportunity to care for your child before you call in someone else. 

Let’s say your spouse is scheduled to have your child over the weekend. However, they are going to attend a wedding that Saturday afternoon. Their parents are willing and eager to come over and care for your child. However, with a right of first refusal provision, they have to offer you the chance to be with your child during that time (assuming it isn’t easier to just trade parenting days).

How much detail do you need?

If you have this provision in your parenting plan, you may want to include some detail about how soon you have to notify your co-parent if you’re aware that you’ll need a caregiver for your child. If your co-parent has known about the wedding for weeks, they can’t just ask you an hour before they have to leave – hoping perhaps that you’re not available.

You might also want to include things like when the provision is used. If you only have to leave your child with someone for an hour, are you required to call your co-parent (when it may be easier to drop them at a neighbor’s)? You can include things like how you need to notify each other (text or phone call, for example) and how much time your co-parent has to respond.

How much detail you include will depend on how much you and your co-parent trust each other to abide by the spirit of the provision, which is to have as much time with your child as possible.