Child Custody | Divorce
Child Custody and the Right of First Refusal
by Hazel Caldwell, Attorney
Parents who are negotiating a child custody arrangement may consider adding a right of first refusal (ROFR), meaning that the non-custodial parent is given the first right to watch the child before a babysitter is called. A third party (like a grandparent) is only called if the non-custodial parent refuses to watch the child.
The custody right of first refusal is the product of negotiation, and can be tailored to the needs of your particular family and lifestyle. This article provides considerations and an example of sample language as a template for your own individual circumstances.
What is the Right of First Refusal (ROFR) for Custody?
The right of first refusal (ROFR) is an option that can be negotiated and included in your child custody order or parental arrangements. There is no obligation to include this term, but you may consider doing so because of its mutual benefits.
The ROFR relieves the custodial parent from having to find and pay for a babysitter, and gives them increased flexibility in leaving the home for personal reasons. For the non-custodial parent, an ROFR offers increased ability to spend time with the child outside of their usual visitation schedule. Children may also benefit from spending more time with each parent in a natural manner.
Best Practices for Exercising ROFR Correctly
Setting Rules Both Parents Can Accept
When negotiating the rules around the ROFR, consider the purpose of the ROFR and in the situations you are most likely to encounter. For example:
- Does the non-custodial parent want every single hour of time with the child (even if this means driving to the house just to pick up the child for 1 hour with her)?
This will help set a minimum set of hours before the ROFR is triggered.
There is no floor or upper limit on this time trigger – but you should choose a triggering time frame based on your realistic and reasonable expectations.
- How can the other parent reasonably be reached? Do they check their phone frequently? What method of contact do they prefer?
This will help set the notice period (the amount of time that the custodial parent will wait after contacting the non-custodial parent, before they look for an alternative caretaker).
Keep in mind that the notice period can be very stressful for the custodial parent, as finding a babysitter can be difficult. A best practice would be for the initiating parent to write a message and also call their co-parent, and for the receiving co-parent to follow up with a written response accepting or declining the offer.
Giving Ample Notice of Opportunities
The terms for notice will be different in each new situation. It is important for the parent who is offering the ROFR to give the option as soon as possible, allowing time for the other parent to make reasonable arrangements.
In your particular ROFR, you can write different notice periods for different situations. The more thoroughly you consider the notice period, the less likely you will end up in a legal battle over this issue – and the lower your court costs and stress level will be.
What Happens if the Other Parent Does Not Follow the ROFR Procedure?
If the other parent does not follow the right of first refusal order or arranged procedure, they may be in default of your agreement (which is a contract and is likely also a court order). Your document may have specific remedies that are available to you – likely under a section titled “default” or similar that discusses violations of the agreement. Repeated violations, especially if not addressed by the agreement, may be grounds for going back to court.
As a preventative measure to avoid the costs and stress of returning to court, you can include provisions in your ROFR that state what the consequences will be for failure to follow the ROFR. You can use creative and equitable solutions, such as increased time with the non-custodial parent to make up for the original lost opportunity.
Custody Right of First Refusal Template
Here is sample language for an ROFR:
Each parent shall grant the other a "right of first refusal" (ROFR) for parenting time with regard to care of the minor children if the [custodial] parent is unable to care for them for [___] hours or more.
If a parent is unable to care for the [child/children] during a period when that parent is scheduled to have the [child/children] overnight or longer [or some other period exceeding ___ hours], that parent shall give the other parent [__] hours written notice via [text to ________/ whatsapp message to ___________/ email to _________] for the other parent to have the opportunity to care for the [child/children] before making arrangements with a third party. This provision does not apply when the [child/children] [is/are] out of town with a parent such that the other parent would not reasonably be able to provide care.
If either parent is unable to care for the child during his/her parenting time for a period of overnight or longer, that parent shall give the other parent the ROFR to care for the child prior to making arrangements with a third party. That parent shall give the other parent at least [____] hours advanced written notice via [text to ________/ whatsapp message to ___________/ email to _________].
When drafting your specific ROFR, make sure to pay attention to the time frames and the definitions of the word ‘notice’. You can consider adding additional paragraphs such as:
Notice should be given as early as reasonably possible, and notice given during the hours of [___ to ____] will not be counted toward the notice period.
Regardless of the situation, the parent who is offered the opportunity to care for the child must respond in writing with a clear yes or no or for further information within the notice period. Failure to respond can be interpreted as a ‘no’ and is permission for a third party to be contacted.
Try to be as clear as possible in any written document, so there is no ambiguity or confusion as to the rights of each parent and what they must do to be in compliance.
Other Instances Where the Child Custody ROFR Applies
The ROFR will apply in the specific situations to which you have agreed. You and your co-parent or the court will set the rules.
Each parent can have an ROFR, or the ROFR can apply from one parent to the other only.
You can also consider drafting language in your agreement for situations outside of the normal ROFR, such as if a medical emergency affects the ability of the custodial parent to take care of the child for some time.
If each co-parent can be reasonable and keep the best interests of their child in mind, the ROFR can be a useful tool for both sides. The ROFR can ease difficulties and increase social opportunities for the custodial parent and can give time for the non-custodial parent to build a stronger and more nuanced relationship with the child. Like any legal tool, the ROFR works best when there is cooperation and mutual consideration.
To get help drafting ROFR language or a custody agreement, look for a family lawyer. A local Unbundled lawyer can provide either full service or pay-as-you-go limited representation for uniquely affordable support in custody matters.
- New York City Courts information on consequences of violating visitation order
- Yeager v. Yeager 2013 N.Y. Slip Op. 6762
- Hanson v. Beach, 2021 WI App. 27 (Wis. Ct. App. 2021)
- Marriage and Dissolution of Marriage Act (Section 602.3), a 2024 Illinois law introducing formal standards for ROFR clauses in the state