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Why parents should seek a ‘right of first refusal’ clause

If you’ll be sharing custody of your children with your co-parent, you likely want every additional opportunity to spend time with them that you can get — especially if you’re going to be the noncustodial parent. If so, or even if you just want to minimize the amount of time your kids spend with other caregivers, you should consider seeking a “right of first refusal” provision in your custody agreement.

A right of first refusal provision stipulates that before a parent can ask a relative, babysitter or another person to care for a child (or take them to a day care facility), they must give their co-parent the chance to take the child during the time they’ll be unable to care for them.

The language in these clauses can be negotiated between the parents. Parents typically both have the right of first refusal. They can determine the circumstances under which they must contact the co-parent. For example, if they’re simply going to be running an hour late getting home from work, do they have to give their co-parent a chance to pick up the child or can they ask another parent to help out?

These clauses may cover things like doctors’ appointments, after-school pickups and activities and evenings out. They can also cover work schedule changes.

A right of first refusal clause can help you stay involved in your children’s lives even if you don’t see them as much as you’d like to. That extra evening a week while your co-parent attends a meeting or takes a yoga class can help you build or rebuild your relationship with your kids.

Unfortunately, some parents find ways to get out of the right of first refusal clause. They may “forget” to call their co-parent, claim they couldn’t reach them or repeatedly fail to contact them until it’s too late to pick up the child. If you believe that your co-parent isn’t abiding by your right of first refusal clause, talk to your attorney and find out what your options are.

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