You politely decline an invitation to have that second helping of banana pudding. That is not, legally, “right of first refusal,” but nice try (and probably better for your pants). No, right of first refusal in child custody and parenting plans means the right for the non-custodial parent to be contacted when the custodial parent needs a babysitter, extended child care, and the like.

What is a Right of First Refusal?

We get it. You spend a lot of bread on a divorce attorney, and maybe you want claws in every clause of the property settlement agreement or child custody arrangement. You want to exact revenge on the children’s mother for … whatever perceived wrongs you feel.

You want a strict, stringent, choking, demanding, ironbound clause that, when your ex-wife or the mother of your children cannot care for them when she is scheduled to have them, she absolutely must contact you first before resorting to:

  • Babysitters
  • Grandparents and other relatives
  • Neighbors
  • Childcare centers

But putting aside the inefficient use of your attorney’s time (and your expense) that such a clause may be, the idea itself is a bit … off. Like a collapsing chocolate soufflé, the grand appearance of this clause can hide fatal flaws.

Is there Weakness in the Clause?

You and your attorney need to do more than cobble together some poorly thought out child custody arrangement. While all the steps to divorce can overwhelm even the stoutest Virginia Dad, you need to think very carefully about the precise wording of any “right of first refusal” clause.

This clause capitalizes on the yen you have to spend more time with your child. What could be wrong with writing in a stipulation that custodial Mom calls you first when she has some reason to find care for your kids?

Sadly, weaknesses in the right of first refusal, as commonly drafted in child custody arrangements, lead to tensions, distrust, and weakened family relationships.

Keep Your Little Birdies Out of It

A mandatory Right of First Refusal clause can turn your children into a den of spies.

Has some news reached you through your children, regarding the actions, behaviors, and attitudes of your ex-wife or the children’s mother? And then when you confront her, she asks how you know. And you, sly Virginia man that you are, say something like, “Oh, a little bird told me.”

It’s a cheap shot; it manipulates your children and turns them into informal and unwitting spies. So instead of putting the kids in a position of snitching on their mother when she frantically and desperately violates such a clause, reduce conflict. Avoid using the clause entirely.

Ramifications of Using First Right of Refusal in a Custody Agreement

Avoid getting into a legal jam over right of first refusal by considering the ramifications for any wording in the agreement:

  • If the rule is inviolate, for example, what happens to the normal, healthy relationship between your children and both sets of grandparents? If your kids must always come to you (or you always have the right to first say no), then the grandparents may never be called upon to step in.
  • If the rule is inviolate, how can the custodial parent (presumably the mother) legally demonstrate that she tried to contact you every time? What if you are simply unreachable? You put her in a legal bind.
  • If the rule is inviolate, what happens when plans abruptly change, or your ex-wife leaves the kids at a neighbor’s house for an hour? Is that something to drag her into court about?
  • If the rule is inviolate and you are suddenly not getting along with the kids (a phase, a stage, boyfriend/girlfriend troubles — think of how finicky kids get), distrust can emerge (“Why doesn’t Daddy want me around?”)

You may feel a tightly worded clause is to your benefit but remember that every weapon can be turned upon the person brandishing it: your children’s mother may turn the clause against you.

Alternatives to First Right of Refusal in a Custody Agreement

Instead of pounding your head against a wall, have your attorney pound out a perfectly worded alternative to Right of First Refusal. Consider these other ways of achieving much the same thing:

  • When either parent is in need of help with the children, that parent, in good faith, calls on the other when convenient and practical (a Golden Rule clause).
  • Instead of a tightly binding clause, replace “shall” with “may” and recast the entire clause to offer a strong suggestion, not a legally menacing requirement.
  • Consider setting a minimum time for implementing the clause, like six or more hours; for anything less than that, the custodial parent can use whatever resources are available.

Call The Firm For Men’s Virginia Beach office at 757-383-9184. We can help with child custody, child support, and other nagging aspects of Virginia family law. We represent Virginia men, no matter their waistlines.