What is Right of First Refusal in Custody Cases

Learn how the Right of First Refusal in child custody can improve co-parenting dynamics. Navigate complex custody issues with this guide.

There is no doubt that parents are the major influencers of a child’s behavior and way of thinking. Parents have the ability to shape their children’s personalities by spending as much time as possible with them.

While that sounds self-evident, a divorce can impede the parent/child relationship. It is incumbent upon both parents to help the children thrive following a divorce, which means spending as much time as possible with them. Though parents may separate, they and their children still form one unit. That is where the right of first refusal becomes important.

Right of first refusal in child custody agreements refers to the fact that one parent must first offer the other parent the opportunity to look after their children before contacting a babysitter or another family member to care for the kids. Many non-custodial parents want this clause in the divorce agreement. It lets them spend extra time with their kids.

What is the Right of First Refusal Relative to Custody Issues?

In any divorce involving children, the parents will agree to a custody agreement that is enforceable by the court. The court allocates specific time for each parent to spend with the children. Sometimes, it is a 50-50 arrangement. In other cases, there will be a custodial parent who has physical custody of the children the majority of the time.

The right of first refusal states that if the custodial parent is unable to look after the children, for whatever reason, he or she must give the non-custodial parent the first chance to have the children during this period. Only if the non-custodial parent refuses can the custodial parent get a babysitter or other caretaker for the children.

The purpose is to provide greater flexibility in custody issues. Let’s say the custodial parent often works long hours. If the non-custodial parent is available, he or she can demand custody of the kids during that time. This holds true even when it’s not their scheduled visitation period.

The right of first refusal also applies to more spontaneous moments. If the custodial parent makes a spur-of-the-moment decision to spend a few hours with friends, he or she cannot simply ask a neighbor to watch the children. Instead, said parent must give the non-custodial parent the right of first refusal to spend time with the children before asking anyone else. Only if the non-custodial parent refuses can the custodial parent make other arrangements.

The right of first refusal helps parents spend as much time as possible with their children before involving a third party, such as a babysitter.

Problems with Right of First Refusal?

The right of first refusal prioritizes the child’s interests. While most parents agree that is a good idea, it may be difficult for two people to communicate amicably and reasonably following a bitter divorce. It can bring up all types of old issues. For example, if the mother wants to see friends and asks her ex if he would like to watch the children for a few hours, the situation can turn into a repeat of past arguments, with him accusing her of never spending enough time with the children. Or if the non-custodial father refuses the offer because he has a date, it could explode into accusations of past misconduct.

Such arguments are a no-win for everyone concerned.

How to Avoid Arguing over the Right of First Refusal

Both exes can avoid some arguments by keeping each other informed. They can use a parenting schedule to update each other on their children’s activities.For example, while noting a doctor’s appointment on the parenting schedule, a custodial parent can add, “I am considering plans for that evening. Do you want to take Johnny for the night? Please let me know by the weekend.” It is a good idea to request a specific deadline to avoid a vague answer such as, “I am not sure yet.”

This keeps communication more open and fluid and can reduce conflict between the parents. The non-custodial parent can accept or refuse the offer, and the custodial parent has time to make other arrangements.


While the right of first refusal clause benefits the children in most instances, it is not a good idea if the custodial parent suspects mistreatment or abuse of the children.

Also, divorce agreements can be amended post-divorce if it wasn’t initially included. A non-custodial parent has the right to change his or her mind and petition the court for a right-of-refusal clause after the divorce has become final.

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

Have more questions? Let us know by sending an email to: questions@legallotus.legal and we will do our best to develop content to provide you with direction and insight!

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