Should you ask for the right of first refusal in a custody case?

You may not love your spouse anymore, but you don’t think they’re a bad parent. When it’s their parenting time, you have no doubt that they’ll take appropriate care of your child.

But, what happens when they have to work? Or what if they get called away for something unexpected? You’re pretty sure that your co-parent is likely to turn to relatives or babysitters for support. That can be disconcerting, especially if you don’t know their sitters (or don’t like the relatives).

It may be wise to ask for the “right of first refusal” in your custody agreement.

What’s the right of first refusal mean?

Essentially, it means that if one parent can’t care for a child during their designated parenting time, they must give the other parent the first opportunity to step in – before they call anybody else.

This can be hugely beneficial for both the kids and the parents. First, it automatically increases the spirit of cooperation that’s needed for effective co-parenting. Second, it increases the chances that the child will spend the majority of their time in the presence of one parent or another (instead of a sitter), no matter how hectic life gets. Third, it can reassure anxious parents about where their child may be when they’re not with them.

What sort of issues need to be addressed?

Whenhammering out your custody agreement, it’s wise to think ahead about different scenarios. For example:

• How should each parent attempt to contact the other when the situation comes up? Is a text message sufficient? Does there need to be two attempts to contact them, two different ways?
• How long does each parent need to wait for their co-parent’s answer regarding their availability before moving on to a third-party sitter? If necessary, can the child be left in someone’s care to be picked up if the other parent becomes available?
• What happens if the plans suddenly change? If, for example, your business trip gets canceled and you’re going to be home for the weekend after all, do you get to “reclaim” your time with the kids instead of leaving them with your co-parent?

It’s also important to remember that this is a two-way proposition: You can’t very well demand something from your co-parent unless you’re willing to give the same in return.

Ironing out a custody plan takes a lot of foresight and skill. Experienced legal guidance can help.