Speaker 1: 0:00

One of the most controversial aspects of a parenting plan is the right of first refusal. Some people love it, some people hate it. Today we're going to talk about what the right of first refusal is, how it works, why some people like it, why lots of people hate it and where I come down on it. I'm Ron Gore. I'm a family law attorney who serves as a mediator, a guardian ad litem and a parenting coordinator. I provide co-parenting education to other attorneys and to parents. In the simplest terms, the right of first refusal is a provision in lots of custody plans that says that if the parent who then is in custody of the children is incapable of providing care for them, then they have to give that opportunity to provide care to the other parent before providing that opportunity to any third party, typically even whether it's a family member or a paid third party like a daycare provider. The way it works is the parent who has custody will contact in advance the non-custodial parent and let them know hey, I'm going to be gone for however long. Sometimes these right of first refusal provisions are as short as four hours. It's typically the shortest time period you'll see. It can be up to eight hours or just overnight even, just depends. So here's an example If you have a right of first refusal this may be four or six hours and you have a parent who is at work during their custodial period and, let's say, for whatever reason, the kids are out of school Maybe it's the summer, maybe it's a teacher work day or something like that then the custodial parent would need to offer to the non-custodial parent at the time the right of first refusal. The non-custodial parent then has the opportunity to accept or reject the offer and you go on from there. If it's accepted, then the non-custodial parent will arrange to pick up the kids. If it's not accepted, then the custodial parent will make other caregiving arrangements. I'll cut to the chase on it. I'm not a huge fan of the right of first refusal and there are lots of reasons why I feel that way, but I'm going to start off with some of the pros.

Speaker 1: 1:56

There are a few scenarios in which the right of first refusal makes a whole lot more sense than in some others. The first area is when you have a child who is very young and you have a parent who doesn't have a lot of custodial time. You know, perhaps the mother is breastfeeding, perhaps the other parent has an overnight work schedule that makes it difficult to have any sort of real parenting time in a traditional overnight fashion. The younger the child is, the more important it is to have repeated contact with both parents, even if it's not a long period of time. So in that context I can see a right of first refusal that's even just a few hours in the afternoon or something that allows the custodial parent the opportunity to go get some stuff done and also allows the non-custodial parent to have some important together time with the child. To start building that bond for when the child gets older and you have more overnights or if it's the case that your work schedule might change, increasing that bond is extremely important and the younger the child is, the more frequent contact is necessary to do your best to build the bond. To me that's the best scenario in which to use the right of first refusal.

Speaker 1: 3:09

But there are lots of reasons in which a right of first refusal doesn't work well and in fact, as a parenting coordinator and a mediator and a guardian ad litem, I deal all the time with conflicts regarding the right of first refusal. Some people absolutely demand to have a right of first refusal. Other people say demand to have a right of first refusal. Other people say there's no way in hell they're going to do a right of first refusal, and there's lots of good reasons why you would not want to have one. So let's start walking through some of the reasons why a right of first refusal can be bad news.

Speaker 1: 3:38

As I talk about the reasons why the right of first refusal may not be a good idea, I'm going to be focused on the kid's perspective. That right of first refusal may not be a good idea. I'm going to be focused on the kid's perspective and it makes sense. Most of the time when I see people arguing over the right of first refusal, it's the parents being focused on making sure that they get enough of their time, and it's not really focused on the children and what the children need.

Speaker 1: 3:58

So one of the main things that I dislike about the right of first refusal, especially as children get older, is that the kids never get to feel like they're settled. I mean, kids just want to have some downtime like everybody else, and if they're constantly, at the whim of one or both parents deciding that they're going to claim more of their time with the right of first refusal, it doesn't give them a chance to settle in anywhere. That's a really disconcerting feeling for children. They like to snuggle up and get in the bed hopefully read a book, you know, maybe play a game, watch some TV, do something, play a board game with step-siblings or something. There's lots of reasons why a child just doesn't want to be disturbed every four to six hours and the right of first refusal just does that. It can just pry them out of a comfortable space to have a transition that may be a difficult transition.

Speaker 1: 4:50

This gets into the second part. It can increase the child's exposure to parental conflict. Typically, the parents that are really really big on the right of first refusal are also parents who are high conflict. Typically, if parents are not high conflict, then they're going to fall into a natural rhythm of maybe an offering each other time or having conversations about their schedules, and it doesn't require some sort of rigid adherence or right of first refusal. So because I feel like there's a positive correlation between exercise of a strict right of first refusal and other interparental conflict, I'm not a big fan of the right of first refusal. In practice, this application typically is going to expose the children to more conflict, which we all know is bad for kids.

Speaker 1: 5:36

One thing that I hate about the right of first refusal is that it tends to turn kids into little spies. You know the kids getting asked. You know what was your parent doing. You know what time did they get home, where did they go, who did they leave you with? All those questions that kids get peppered with become more salient when you have a right of first refusal. There tends to be more questions asked of them and kids are smart. You know they tend to figure out that they're going to be asked about these things. When you turn a kid into a spy, remember you're turning a kid into a double agent because they're going to have these loyalty conflicts that drag them both ways. You start to get them thinking about intelligence gathering and narking on a parent and it's just not good for the kid. It inevitably leads them to having loyalty bonds and it's just going to create more problems for you in the future. So right of first refusals I don't like because they tend to turn kids into little marks, into little spies on a secret mission, but the kids having to determine what they're going to disclose and what they're not going to disclose. It's a horrible situation for kids.

Speaker 1: 6:47

Another reason I'm not a big fan of the right of first refusal is that it takes the emphasis off of what a child's job is as a kid, which is to grow, to individuate, to become self-sufficient and ready to move out into the world on their own. If the right of first refusal is going to be invoked, then inherently the child is not going to be with one of the primary caregivers, with one of the parents. This gives the child an opportunity to expand their social circle. There may be a step-sibling that they really enjoy spending time with, or maybe an aunt or a grandparent that they like to spend time with. If that's the case, then the biological parent. Sort of ripping the kid out from the possibility of expanding their social network with those positive interactions is not good for the child and is counterproductive to the child's job of becoming their own person. Apart from their parents, not every child has the opportunity to have a social circle that is broad. If your child does have that opportunity and if the people with whom they may be left, if you're not invoking the right of first refusal, are good people with whom your child can have good social interactions and learn more about themselves and the world, then you're really doing them a disservice by keeping them from having that opportunity to learn and to grow.

Speaker 1: 8:06

I also dislike the right of first refusal because it just places more cognitive and emotional load on a child than they need to have. I mean, think about it from your own perspective. Let's say that you have to travel for work or whatever. You're going from place to place. You're maybe staying in a hotel here one night, staying in a hotel another night. You're just not able to get settled, kind of like. I'm asking before If you've ever done that. You know that kind of schedule, that unpredictable movement, that being in different places, that wears you down. A child has finite resources finite intellectual, emotional, cognitive resources. The more you're putting a load on them by forcing them to have unpredictable transitions, never being able to get in one place, never quite knowing what they're doing tomorrow because they never know which parent is going to invoke the right of first refusal then you're increasing the load on your child. As you increase that burden on them, you're taking away from the resources that they could be using to learn and to grow the way that they're supposed to be doing.

Speaker 1: 9:09

So don't get me wrong. I mean there are situations in which maybe one of the parents isn't great, maybe their home environment isn't great, but for some reason they still have parenting time. I can totally understand that if a parent doesn't have a good support system, if you can't trust the people with whom your child is going to be left, unless you invoke the right of first refusal, I can definitely say that there's a rationale there. I can definitely say that there's a rationale there. No-transcript. I understand that there's some outlier situations where the right of first refusal makes sense. Non-traumatic outlier where it makes sense is where you have very young kids and you have a parenting time that is very uneven, where one parent has very little parenting time. That can make total sense. But typically, for the most part, I would stay away from the right of first refusal. I think it tends to be a parent-centric thing, where the parent is putting their own needs in front of the developmental needs of their kids. I think it just is. It is one of the number one conflict drivers that I see in my work as an attorney, a parenting coordinator, a guardian ad litem, and it is a hot button in lots of mediations that I do as well.

Speaker 1: 10:51

I just urge you to put it aside unless there's a real reason for it, not just because you want more time with your kids. Think through it. If you would, before you, invoke the right of first refusal or have it put into your orders, would your child actually enjoy more you coming to get them from the other parent's house more than they would enjoy staying there and relaxing? Staying there and playing with the step-sibling, staying there and hanging out with some other adult who's a family, whether it's a step-family or biological family? If they would rather stay there, if they would have a good time and be safe, then rethink whether you should be invoking the right of first refusal. Is it really for your child's best interest or is it for your understandable but selfish need to have more of your time with your child?

Speaker 1: 11:46

If you're going to put a right of first refusal in place in a parenting plan, then it's important that it be specific. You need to make sure that there are some key provisions. So the first would be what is the minimum number of time before the right of first refusal is triggered? Very often it's four hours, six hours, eight hours. Sometimes it's overnight. The gamesmanship increases, I think the less time that there is, the gamesmanship increases, I think, the less time that there is. I've seen people who go to work and come home right at the four-hour mark to have lunch and then go back to work, so the right of first refusal isn't triggered, even though their child in practice is being watched by somebody else, and the whole purpose of the right of first refusal is being defeated.

Speaker 1: 12:25

You want to make sure that you have proper communication methods involved, so timely communication is critical and timely is context-specific. So very often a right-of-first refusal is going to be triggered with very short lead time. You may find out that you got called in for an extra shift at work and now, all of a sudden, the right-of-first refusal is being triggered. You have to let the other parent know in a way that is meaningful in order to comply with the order, and if you are using a parenting app where you have a standard rule that you only have to respond within 24 hours, then it may not be the case that your parent's going to see it. So there's typically going to be a provision that if there's something that is more in the nature of an emergency situation or in the nature of a communication that is time sensitive, like that would be then you do something else. It's either a phone call or a text message, so you would need to have that mapped out. You know how do you communicate the right of first refusal when there's a very short turnaround time. Also, you have to put in place, concomitantly with that, the response time. You know, if parent A just found out that they got called into a shift and they have to be at work in an hour and they send parent B a message about the right of first refusal, they have very little time to hear back because they have to set up alternative child care if parent B is not going to take the kid. So not only are you going to have to communicate with them meaningfully, in a way that they can get it quickly and respond, they actually have to respond in a meaningful amount of time.

Speaker 1: 13:56

And then, lastly, transportation is an issue. Typically, what I will put in my orders is that the person who is executing the right of first refusal, the person who's been offered the extra time and is accepting it, is the person who does all transportation Typically. The reason I do that is because the parent who is offering the right of first refusal has something they have to do and the parent who's exercising the right of first refusal apparently has the time free, so it just makes sense that the parent who's exercising the right of first refusal would do the transportation. If you're going to do the right of first refusal, I just encourage you to keep your child focused first. Think about their, think about their perspective. Think about whether they're going to enjoy their time more where they are or with you. Try to be honest about that.

Speaker 1: 14:42

If you continually invoke the right of first refusal and your child doesn't like it, they're just going to start resenting you. You may have more time, but it's not going to be time that is enjoyable time. You're going to be damaging your relationship, not strengthening it. So please engage in a bit of self-reflection, a little honest inventory of what is actually in your child's best interest and what they would actually prefer, remembering that their time is theirs. Their life is not your time. They have their own needs, their own desires, and sometimes their changing needs aren't what you'd like. Sometimes they're going away from you for a little bit, as they're differentiating. That's okay. That's probably what they're supposed to be doing If it's helping them become a secure, independent individual who has a broader social network and greater confidence, stepping out in the world on their own, then it's good for them All, right, everybody, thanks, hope you have a great day.