First Right of Refusal

It is beyond me why all divorce decrees do not have first right of refusal in them automatically, but they don’t.  Mine didn’t, and then I had to negotiate to get it put in.  Why?  In my case, my ex left the kids on his weekend with a babysitter…more than once.

Since our first right of refusal has been firmly typed into our decree, when he has the children and can’t take them, he contacts me first.  I have the option of taking the children, or if I can’t, then he has the option of canceling his plans or hiring a babysitter.  It not only works, it is necessary to have it in your final papers.

First right of refusal does not mean that your children can’t have sleepovers when it is your time with them, or even spend quality time with Grandma and Grandpa.  First right of refusal is when you can’t be there to care for your kids for a certain amount of time when legally it is your visitation.  It is when you have to either hire someone to take care of your children for you or farm them out during your visitation because you are not around or available, and I am not talking child care during the day, but overnight situations.

Is it better for the kids to be with a babysitter or an available parent?  And isn’t it only fair that the available parent have that first right of refusal, no matter whose visitation it is?  After all, if you are the parent with possession, but can’t be there, is it better to keep your kids with someone you know or the other parent?

I think so, and have always thought so.  No matter how angry I have been at my ex, and I have been plenty angry at him, I still think the kids are better off with him if he can take them and I cannot.  Of course, in a perfect world, every divorced couple is singing Kumbaya together and holding hands skipping through a field.  We know this is not a reality.

But, do not punish the ex because of your anger, and don’t punish the kids.  If your ex is not a good person then in the end, it will come back and bite them in the nether regions.  For those parents that want their kids when their ex isn’t available, they should have that right to have them first, even if it isn’t their “allotted” visitation time.

If you are insistent that you don’t want your ex to have your kids during your time, even though you won’t be there, then make your plans when you don’t have your kids to begin with.

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Lee Brochstein About Lee Brochstein

Lee Brochstein is a certified professional divorce coach, blogger, a well-known author and a nationally known expert from her appearances on television and radio talk shows. She enjoys alliteration, Mad Men, Big Bang, mixed breeds, vanilla lattes, red wine and her kids when they aren’t killing each other. Follow her on twitter and Facebook.

  • Big Little Wolf

    This is such a tough issue, and one that needs discussing – so thank you for raising it. Of course, when the non-custodial parent lives in another city or state, it is hard to know who he or she is really leaving the children with. And the options are often few and far between, no matter what you do.

    • PostDivorceCoach

      I don’t think you can realistically have the FRR if the other parent lives in another state. It is just not physically possible for that…or it would be very expensive!

  • Mandy

    My parenting agreement does have this provision in it, thanks to my very good attorney who suggested it. Hasn’t really been an issue because my kids are older but if one of us has a long commitment during our parenting time we do routinely contact the other.

  • Jack Adams

    I never had this but I can see where this is an excellent idea. I’ve never had a babysitter for my son, not even family. My time with him has always been too important to me to just casually give it away. His mother and I have always managed to work out schedules when our standard times were in conflict with other obligations.
    I think FRR is a good idea unless it is used against the parent that is in need of the babysitter. Both parents still need to be understanding if schedules simply don’t permit either parent to be available.

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  • Kelly

    It’s USUALLY a good idea, but not in the case where the ex will not permit overnights with their cousins at the grandparents house… Even if a judge wouldn’t consider that a violation of the agreement, it would go definitely be taken to court. So, in my situation, I don’t want it. We don’t use babysitters. We plan our events accordingly. Either we take the kids or we don’t go.

    • PostDivorceCoach

      I also never use a babysitter and plan everything around when my children are with me. But, if when I have had to go out of town, I always give my ex the first option of taking the children. Of course, he never does, so I always cancel my plans. I learned just not to make them when I have them…and sometimes when he has them as well!

    • Jenny

      I think its a questionable practice for high conflict people to constantly be knowledgable about their ex’s plans. And you need to develop other options as a single parent because your ex can’t always swoop in and save the day. Besides, kids won’t take one parent seriously if the other parent is constantly involved when they are over visiting.

  • psychobeware

    Oh we have this in my Husbands decree with skids mother. Before the divorce was final she left the kids all over town, seriously. And don’t get me started on the three month stint that she refused any visitation and tried to prove he and I were drug addicts…..passed all hair follicle tests of course!!! Yes she was out doing whatever and leaving kids everywhere. Then she would incriminate herself by posting on facebook, where she was and thanks so and so for keeping the kids all night blah blah. We schedule our weekends and time around our parenting time with all of our kids. Ocassionally there will be a wedding or such that comes up, but if it’s going to be more than three hours we always offer the kids to the other parent.

  • Traci

    I think this is a great idea. My agreement with my ex doesn’t have such a clause but I certainly would feel more comfortable if it did. I wonder, though, how it would work with an ex who was in a committed relationship or remarried? Would it still make sense to have the kids at home or to have them with their step family? Then it becomes a touchy situation. It raises great questions though!

    • PostDivorceCoach

      Traci: If your ex is going to be out of town overnight, it makes more sense for the child or children to be with the natural parent, if they can take them. If it is during the day and the kids are out of school, then of course, the children can stay with the step mother or step family.

      • Catherinehelen4

        PDC – Why would that make more sense? Our blended family is a loving one. Our 4 children (I have 2 and he has 2) love spending time with one another and they look forward to being together. If I or my DH have to go out of town for work or for an evening and we have all four children in our home, it makes no sense to split them up to send them back to their other parent if one of us will be home to care for them. .

        • PostDivorceCoach

          The bigger question is why would you not want the natural parent to have the children? If you make plans to be out of town overnight when you have custody, then why should those children stay with you, unless the natural parent is unavailable? Regardless on how loving the blended family is, the natural parent should have the decision and first right to refuse to take the children. This does not pertain to a night out for dinner and a movie, but for longer than a specified amount of time.

          First right of refusal gives the parent without custody the courtesy of
          1. Knowing if you leaving the children
          2. The ability to take over that parenting time that you are willingly giving up because you are not there.

          It makes perfect sense.

          • Traci

            I think first right of refusal is a great idea, and extremely practical, but to Catherine’s point, breaking up a loving family situation just to have “dibs” could be rough on the child. I think it’s up to the natural parent to be the grown up and know that it’s not always the best thing for the kids, and therefore forego that right in some situations.

          • PostDivorceCoach

            I think it works both ways…It tells the natural parent when the other parent will not be there and of course, it would be great for that parent who is not in possession to say…Hey, thanks for letting me know! Of course, the kids can stay with. But, without that option, it is not fair to the other parent. First right of refusal GIVES that option.

  • Phil

    I have been in cases where a “frist right of refusal” has been used as a justificantion to almost stalk the other parent. When younhave those dynamics, it doesn’t work.

  • Betty

    Absolutely First Right of Refusal!!  As a single parent and only getting to see my son 1/2 the time – I want every single opportunity to spend more time with him.  If there is a step parent or not.  Also keeps the other spouse a bit more ‘honest’ in what they do and what they choose as reasons they can’t care for the child at that time.  My ex demanded shared parenting but was not much in our childs life because of selfishness only.  Unfortunately the courts in Alberta are more likely to grant shared patenting as opposed to custody and access – it’s only be a few months and my ex has already left my child with strangers to do his ‘activities’ that are not important nor emergencies.  We are just settling our shared parenting agreement and FRR is something I will not budge on.  I agree with Lee Blcik – make every effort to do ‘your own stuf’ on the time you don’t have your child.

    • LeeBlock

       I think the First Right of Refusal is vital in every decree and I don’t know why anyone wouldn’t have it in their papers.  After all, it is always best for the children to be with a parent.  If the other parent doesn’t want to be with the children, why would they take them!

  • Amanda Ferry

    I don’t believe this! I am a single mother after my ex husband who was 34 at the time sleept with a 16 year old and got her pregnant. (Indiana it isn’t illegal, age consent is 16) That girl’s father was on trial for molesting her sister and eventually pleaded guilty so he could take a plea agreement. My ex then married the now 18year old who is pregnant with her second child. I work hard to support my little girl and have sundays and only one other random day off…my ex is pressing the right to refusal and has caused problems with all my sitters, so they quit. I am left with my parents who live 20 minutes away to take my daughter to and from school because I work random hours everyweek, including saturdays. I shouldn’t have to contact my ex every week to let him know what I work, just so he can take my daughter (who is nearly 5). Most of the time he works odd hours and has his teenager wife (who is still in highschool) watch my daughter, but i have no proof that he does….he knows that I have to because I am the only person in my household to take care of my daugher. Now he is using it against me to hold me in contempt of court! This is absolutely ridiculous. And now Im stuck looking for new sitters just so i can work, and believe me the ones that can or are willing to help refuse if they have to deal with the ex. Child care/day care is not an option for me its over half my income in a month, and they don’t do kindergarden age. So this right to refusal is just another crap way of not letting the custodial parent move on with his/her life!

  • Jenny

    The right of first refusal is only worthwhile if a parent is willing to invoke the refusal. I had a very high conflict divorce, and my ex-husband wants me and my fiancee to constantly rearrange our schedule because something has come up on his days with my daughter. I think that if the child sees the other parent constantly making the “flying catch” they miss the opportunity to see the more absent parent in a true light. When I have my daughter (most of the time) I make sure I am meeting her needs or finding someone who is. I expect my ex-husband to do the same when my daughter is with her.