Defining the Right of First Refusal
The right of first refusal is a specific family law term of art concisely defined for those in that legal field as follows: "the opportunity provided to either parent of a minor child to take care of said child when the other parent would be hiring, paying, or otherwise compensating a person to do so." The concept is often misunderstood. In that vein, the question is, "what does this mean?" Oftentimes, if a parent has a right to first refusal under a settlement agreement or court order, there is no correlation between the legal terms agreed upon or ordered and how the concept is used. It can be viewed simply as a means to keep one parent in the know with regard to the care the other parent is delegating to others. Instead of the first right of refusal being exercised genuinely (which it can be), parents will bend the legal terms of the contract or court order to abuse the provision.
In most cases, the right of first refusal is intended to ensure that a child is remaining in contact with each parent on a frequent basis and to prevent one parent from "finding" others to perform primary caretaker tasks. For some persons, that may be baby-sitters. For another parent, that may be day care. The right of first refusal is intended to ensure that the parent who would otherwise delegate the caretaking responsibilities is attempting to utilize their legal right that provides for time spent with each parent during our regularly scheduled custodial and parenting time periods , as opposed to hiring someone else to care for the child. A good example would be if a father was going to take their son to a week-long camp and the mother had no activities planned for the child but she was going to hire a baby sitter while she ran errands or worked from home. The right of first refusal should be triggered but that conflict does not seem to arise very often and the parent exercising the right of first refusal will be adamant that they wish to provide the care and custody of the child when the other parent is unavailable to do so.
A right of first refusal is not intended to be a punishment. For example, if one parent lost their job and, as a result, they wanted to save money by not paying for day care or a baby sitter, that is not it. The right of first refusal is intended to be exercised contemporaneously with the time of the other parent and to promote the concept of the custodial parent having extended custodial time when the other parent is away. If the right of first refusal is going to be used to punish the non-custodial parent or to keep them away from the child, generally speaking, any legal provision is going to be set forth in such a way that the non-custodial parent is going to have free reign to exercise their rights under that provision because the rationale behind the provision is that one parent should have the opportunity to care for the child when the other parent is unavailable.
Legal Effects in a Custody Dispute
The right of first refusal is typically integrated into the custody arrangement. The most common arrangement is that if a parent who has parental responsibilities to or parenting time with the children will not be available for a certain amount of time (i.e. more than two hours), then the kids shall be offered to the other parent to care for them during that time. If that parent is not available, then others can be considered, such as grandparents or other extended family.
Legal considerations are as follows:
The right of first refusal denies both parents "unfettered discretion to select who will care for their children when the parents are not available." Edge v Edge, 87 AD3d 1275, 1276 (3d Dep’t 2011).
The right of first refusal is not appropriate "when the custodial parent has an obligation to be physically present with their children" during work hours. Petronzio v. Petronzio, 167 AD3d 1343, 1344 (3d Dep’t 2018).
The right of first refusal is only necessary if "both parents willingly adhere to their work schedules and can be expected to be available during those times to care for children." Davis v. Hutter, 138 AD3d 1091, 1093 (3d Dep’t 2016).
Advantages for Families
For obtaining the additional benefits that come along with the right of first refusal clause, it is important to get the clause in regardless of the issues that may arise from it. The right of first refusal clause has many advantages for everyone, and it should be considered when seeking a custody agreement or order. One of the most significant advantages of using this clause in an agreement or order is it can enhance a parent/child relationship. The child or children will know their needs are not put on hold until the other parent can have their scheduled time, which can be a real struggle when the other parent has conflicting plans and schedules. Another advantage of having the right of first refusal clause in a custody agreement is that it provides some consistency for the child. Children need as much stability and normalcy in their world as possible. Having the right of first refusal clause in an agreement or order allows for less impact on the child when unforeseen circumstances arise. They can benefit from having a place where they feel they belong and at home. For the parents, these advantages can ease their concerns about not being able to spend as much time with their child as they would like, or in some cases, having the child with a sitter or family member instead of themselves. A right of first refusal clause can be extremely beneficial as it reduces the animosity that often goes hand in hand with parenting time and decision making.
Potential Pitfalls
There are certainly some drawbacks to the use of right of first refusal. The most common is the logistical challenge of calling your ex before getting a babysitter. In order, the parent is supposed to call the other parent and let them know that a babysitter is needed and that the visitation must be offered. If the other parent does not want to offer their services or cannot for any reason, the babysitter can be called in. The idea is to prevent the hassles of swapping time back and forth or calling up a series of babysitters over and over again.
However, an issue can arise if one parent will not answer the phone when the other is calling about a babysitter . Again, there is nothing really you can do about this as there are no established times when the phone calls must happen.
Another issue is the conflict that can arise between parents. Parents who have an amicable relationship often find it easy to follow the rule of right of first refusal. On the other hand, those who have conflict struggle more with this practice. Many people end up discussing issues such as this in the courtroom, which can make the problem into something bigger than it needs to be. Part of the problem is the fact that this entire concept of right of first refusal is subjective and left to interpretation.
Incorporating the Clause
Like many things about a family law case, the language of a right of first refusal clause varies based on a number of factors. When drafting the clause, there are important things to consider that will help give it meaning and purpose tailored to the needs of the parties. First, parties need to consider ahead of time whether the right of first refusal applies only when the parent is not able to care for the child for more than a certain period of time (i.e. two, three, or four hours) requires an overnight stay and, in the most general sense, what the right of first refusal actually requires. Second, it is worth noting that there is nothing, by statutory requirement or otherwise, that a right of first refusal be reciprocal. In other words, it does not have to apply to both parents equally and, in fact, frequently applies only to one (typically the non-custodial) parent. It also may only apply to one particular situation or even a specific timeframe (i.e. until the child is no longer a toddler). Third, parties need to think about how an agreement would actually work in practice. Will parties always have to physically ask for permission to (for example) babysit the other’s children before making plans out of the home? Or could "the ask" and "the offer" be done through text, phone, or e-mail? What about distance – will the right of first refusal clause require a certain geographical proximity before parties have to ask of the other? Will distance matter at all? Lastly, while family law attorneys who draft these clauses typically leave them as ambiguous as possible to cover a wide variety of situations, oftentimes it benefits the parties to specifically lay out who does (and does NOT) have to honor a right of first refusal. For example, does the right of first refusal apply to just family members, close family friends, or really anybody at all? Does the right of first refusal apply to babysitters, or is a separate clause drafted to handle that situation?
Enforcing the Right of First Refusal
Enforcement of a right, at least in the context of a divorce, whether it’s the right to first refusal or some other right, is essentially an action derived from contract law. If the right is not being adhered, then whoever holds the right to first refusal has avenues at their disposal, all of which require that you consult with an attorney to understand where you might stand in terms of a settlement or pursuing a right in court for some sort of enforcement.
A right of first refusal clause is typically in the form of a contract between parties, usually husband and wife. There are usually a great many clauses in those agreements along the lines of "if X happens, then Y is obligated to do Z". If Y fails to do Z, then X can sue Y to force Y to comply with whatever that obligation is.
For instance, if Y refuses to honor that right of first refusal clause and Y refuses to allow their ex-spouse to have the kids, it might be appropriate at some point to get the Court involved and have a family law attorney file a motion for enforcement and ask that Judge Johnson enforce our Right of First Refusal Clause. These things go a lot of different ways. But they are enforceable in the same manner as any other right, as a contractual right from contract law.
Somebody needs to do something to enforce a right of first refusal and if both parties are arguing and neither party will agree with one another , you may need to have a family law attorney involved to file a motion and have your opportunity in court to request that the right to first refusal clause be honored.
To be very clear… there are times where the person is correct in their interpretation of the right to first refusal clause. If they are correct, then the other party is going to take the hit, even if he feels like he’s getting taken advantage of. An example is if husband and wife agree… " Okay I’ll do my weekend on; you’ll do yours when the kids aren’t here. We will allow for the kids to stay with each other when they’re out of town on business."What happens if one party violates or refuses to go with that right? Well, then the other party gets the kids. It’s in the language of the agreement and he agreed to it. So regardless of whatever that individual may be feeling about, "this isn’t right" or "this isn’t fair", the Court should uphold that Right of First Refusal Clause.
If the language says "the kids go with dad when mom’s out of town on business" and the dad says "kids, go with mom", and mom agrees to it, then dad just did himself a disservice. Family law attorneys, and the law, view these things very, very specifically.