Right of First Refusal

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When separated co-parents establish the grounds rules for their parenting schedule, it is common to include a “right of first refusal.”  The right of first refusal allows an “off-duty” parent to care for the child(ren) during the other parent’s parenting time if the “on-duty” parent is gone for a while.  The “off-duty” parent is made aware, in advance, that the child will be in the care of a third party because of the “on-duty” parent’s absence, and given the opportunity to provide care instead of the third party.

The right of first refusal may apply to an overnight, or for a block of time, such as four (4), six (6) or eight (8) hours – whatever the parties agree to, or whatever is devised by the court or decision-maker.

One issue that often arises with the right of first refusal is the situation in which it applies to children’s spending time with grandparents or extended family.  If the ROFR is applied strictly in every situation, then the children would theoretically never have sleepovers at a friend’s house, or long visits with grandparents.  Conversely, a parent could circumvent the ROFR altogether if grandparents are deemed an exception to the ROFR rule, and grandparents live nearby.

Most commonly, the right of first refusal applies to avoid children being in the care of a babysitter when they could be with their other parent.

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