When parents divorce or separate in Virginia, one of the most important issues they must resolve is how parenting time will be shared. Custody agreements and parenting plans often include special provisions designed to maximize a child’s time with each parent.

One of the most common provisions is called the right of first refusal. While the name may sound technical, the concept is simple: it gives the other parent the first opportunity to care for the child before a babysitter, daycare provider, or relative is used for childcare. This clause can be extremely valuable for parents who want to remain actively involved in their child’s life. However, it can also create conflict if it is poorly written or used improperly.

Understanding how the right of first refusal works—and whether it makes sense for your custody agreement—can help you make better decisions during divorce negotiations.

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What Is the Right of First Refusal?

The right of first refusal in a custody agreement means that if a parent cannot care for their child during their scheduled parenting time, they must first offer the other parent the opportunity to watch the child before turning to a third party for childcare.

In practical terms, this means that if a parent needs someone to watch the children—whether for work, travel, or another obligation—they must contact the other parent first. Only if that parent declines can they arrange alternative childcare such as a babysitter, relative, or daycare provider.

This provision is often included in parenting plans because it allows children to spend more time with their parents rather than with third-party caregivers.

How the Right of First Refusal Works

The specific details of a right of first refusal clause can vary widely depending on the custody agreement. In many cases, the clause only applies if the parent will be unavailable for a certain amount of time. For example, a parenting plan might state that if a parent will be away from the child for more than six hours during their parenting time, they must offer the other parent the opportunity to care for the child.

The clause usually includes several important elements:

  • The minimum amount of time that triggers the rule
  • How the other parent must be notified
  • How quickly the other parent must respond
  • Exceptions for emergencies or minor schedule changes

Once the other parent is contacted, they can either accept the opportunity or decline it. If they decline, the parent who has custody at that time can arrange other childcare.

Common Examples in Parenting Plans

The right of first refusal can apply to a variety of everyday situations.

Imagine a parent has custody of the children for the weekend but suddenly has to travel for work. Instead of leaving the children with grandparents or hiring a babysitter, the parent must first contact the other parent and offer them the chance to take the children for that time. Similarly, a parent who needs to attend an evening event or work a late shift may need to contact the other parent before arranging alternative childcare. These situations can create additional opportunities for the child to spend time with both parents.

Benefits of the Right of First Refusal

One of the biggest advantages of the right of first refusal is that it encourages children to spend as much time as possible with their parents rather than with third-party caregivers. This can strengthen the parent-child relationship and give both parents more opportunities to remain involved in their child’s daily life.

Another benefit is that the clause can help reduce concerns about who is caring for the child. Some parents feel more comfortable knowing that the other parent will be given the chance to step in before a babysitter or extended family member is used. In some situations, this clause can also make up for limited parenting time by creating additional opportunities for contact with the child.

Potential Problems With the Clause

Although the right of first refusal sounds appealing in theory, it can also create practical challenges.

If the clause is written too broadly, it can lead to constant communication between parents about minor scheduling changes. For example, requiring a parent to notify the other parent every time they run an errand or attend a short meeting can create unnecessary conflict. The clause can also become a tool for micromanaging the other parent’s time. Some parents may feel that the provision forces them to reveal personal schedules or social plans to their former spouse. Because of these issues, courts and attorneys often recommend drafting the clause carefully so it applies only to significant periods of absence.

Drafting a Clear Right of First Refusal Clause

The success of a right of first refusal provision often depends on how clearly it is written.

A well-drafted clause should specify exactly when it applies and how the process works. For example, it might state that the rule applies only when a parent will be absent for more than eight hours or overnight. Clear guidelines about communication are also important. Many parenting plans specify that notice must be given by text message or email and that the other parent must respond within a certain number of hours. Without these details, misunderstandings and disputes can quickly arise.

How Virginia Courts View the Clause

Virginia courts generally focus on the best interests of the child when deciding custody and visitation issues. The law encourages children to maintain frequent and meaningful contact with both parents whenever possible. Because of this principle, the right of first refusal can sometimes be viewed favorably if it promotes stronger relationships between children and both parents. However, it is not automatically included in every custody agreement. Parents typically negotiate this provision themselves, or the court may include it if it believes the clause will benefit the child. For many families, the right of first refusal works best when both parents communicate well and respect each other’s schedules. When conflict is high, the clause may create more problems than it solves.

If you are negotiating a custody agreement in Virginia, working with an experienced custody lawyer can help ensure that any right of first refusal provision is written clearly and protects your parental rights.

The Firm For Men represents fathers in custody and divorce cases throughout Virginia. If you have questions about parenting plans, custody agreements, or the right of first refusal, contact our Virginia Beach office today at (757) 383-9184 to schedule a consultation.