Right of First Refusal in Custody

How a right of first refusal works

1. A parent will be away during their own parenting time for longer than the threshold in the plan.
2. They tell the other parent, through the agreed channel, as early as they can.
3. The other parent answers within the agreed time.
4. If they accept, they collect the children (or as the plan says), and the regular schedule resumes afterwards.
5. If they decline, or do not answer in time, the first parent arranges other childcare.

For example: parent A has the children from Friday to Sunday and is called in to work from 2 p.m. to 10 p.m. on Saturday. The plan's threshold is four hours, so A offers the time to parent B before calling a babysitter.

The details that make it work

• The threshold. How long an absence triggers it. Plans often use a number of hours, or say it applies only to overnights. Too short, and every errand becomes a negotiation.
• Notice. How far ahead the offer must be made, and what happens with short-notice changes.
• Response time. How long the other parent has to answer before the first parent can make other arrangements.
• Transport. Who collects and returns the children.
• Who counts. Whether time with a step-parent, a grandparent or a new partner counts as the parent's own time. Many plans say family members named in the plan do not trigger the clause.
• Exceptions. School, activities, sleepovers with friends and emergencies are usually excluded.
• Whose time it is. Say whether the time changes the official schedule. Usually it does not: it remains the first parent's parenting time.

Pros and cons

What it can do well

• The children spend more time with a parent rather than a sitter.
• It recognizes both parents as the first choice.
• It can reduce childcare costs.

Where it goes wrong

• It can become a way to monitor the other parent's time.
• A low threshold means frequent contact, which is hard when conflict is high.
• Children can be shuttled between homes for short stretches.
• It can get in the way of time with grandparents, step-parents and other family the children love.

When to leave it out

If there has been domestic abuse, if there is a protective order, or if conflict is so high that every contact becomes an argument, a right of first refusal tends to create more friction than it is worth. The same goes when the homes are far apart. In those situations, read about parallel parenting, and get legal advice.

Sample clause

If either parent will be unable to care for the children for more than four consecutive hours during their parenting time, that parent will first offer the time to the other parent by message at least 24 hours in advance, or as soon as they know if it is less. The other parent will answer within two hours. Time with a step-parent, grandparent or other family member named in this plan does not trigger this clause. The parent accepting the time is responsible for transport. The regular schedule is not otherwise changed.

This is example wording only. Have a family lawyer check any clause before it goes into a plan or an order.

Making it work in practice

A right of first refusal depends on fast, clear messages. In the Co-parenting app, the offer and the answer sit in one thread with read receipts, so "I never saw it" stops being an argument, and messages cannot be edited or deleted afterwards. For longer changes, a schedule change request has to be accepted by the other parent before anything moves.

The rest of the plan is covered in what to include in a parenting plan, including custody exchange rules.

Frequently asked questions