What is "Right of First Refusal"? Right of First Refusal, also known as "RoFR", is a term used to provide a parent the "first right" to refuse parenting time, should the first parent be unable to care for a child for any period of time during their scheduled parenting time.
What does that mean? It means that if one parent must leave the children with any third party during their parenting time, they must FIRST contact the other parent to offer to allow that parent to watch the children before leaving them with someone else so that that parent has the "first right" to refuse parenting time.
That sounds great?! While this can initially sound like a great idea to add to your custody agreement, every Court in this local area has refused to add RoFR to custody Orders as a matter of practice. RoFR causes more problems for you and your children than parents realize, let's look at some examples of this clause in action.
Example #1: Cassandra has two small children, Sandy and Billy, aged 4 and 6. She exercises "week on/week off" parenting time with her ex, Christopher. It is her week and she needs to go grocery shopping. Sandy and Billy hate going to the grocery store, so Cassandra drops them off at grandma's house on her way to the store. Cassandra has violated Right of First Refusal because she did not offer Christopher this extra time with Sandy and Billy FIRST before dropping them off at Grandma's house. Christopher files a Motion to hold Cassandra in Contempt of Court.
Example #2: Bob and his ex-wife, Shannon, have one child, Sally, age 8. Bob is re-married to Cheryl. Bob and Shannon have a "week on/week off" parenting time schedule. During Bob's parenting time, Sally and Cheryl are playing with Sally's dolls and Bob decides to run out to the hardware store to pick up some items for the house. Bob has violated right of first refusal because he did not first call Shannon, his ex-wife, to offer to allow her the extra parenting time while he ran to the hardware store and, instead, left their daughter with her step-mother, Cheryl, even though Cheryl and Sally were having a good time playing with Sally's dolls.
Well that doesn't make sense! You're right, while on it's surface, Right of First Refusal can sound like a great idea, it is generally a bad idea when put into practice and can lead to many complications in Court and your personal life. RoFR prevents children from being able to spend important time with grandparents and step-parents. It also creates a situation where children are put into a "tug of war" with being shifted from one parent to the other and never settling into a normal life routine while in the care of a parent. Simple sleepovers with friends or playdates at another child's home can violate RoFR!
Does it ever work? Right of First Refusal has it's limited uses. With very young children, such as infants, RoFR could be useful versus having a child going to a daycare if the other parent is available. If one parent must travel for work, it can also make sense. In each of these situations, there must be strict circumstances of when RoFR takes effect. You don't want to deprive your child time with their grandparents or with friends.
How can I make this work? Many parents want to add this to their parenting time orders. If you insist on doing so, strict rules for each parent must be clearly laid out, such as what situations qualify for RoFR. What time frame does the parent need to be gone? How quickly does the other parent need to respond to the offer? How much notice does the parent have to give the other parent? What if the child wants to go see a friend or spend the night at Grandma's? As you can see, in practice, this does not usually work out long term. As children get older, it's important they spend time away from their parents and gain independence. It's also important children have bonds with other family members, such as grandparents or step-parents.
What would the Court do? Our local Courts do NOT order Right of First Refusal under any circumstances. This is frustrating for parents that believe RoFR is what they want. In order for our local Courts to award RoFR, both parents must consent.
Attorney Allison Greenlee Korr handles cases in Kalamazoo, Battle Creek and all surrounding counties, call today for a consultation. 269-381-4471