Right of First Refusal

We are often asked about A Right of First Refusal (as it relates to children as opposed to the buy-out of a property) because separated parents have heard about the concept but are not entirely clear what it means or how it may apply in their case.

The more modern equivalent of the phrase is “Assuring Priority of Parental Care”. In fact, that wording expresses more clearly the intent behind the phrase - in other words, dealing with situations in a way that prioritizes care of children by their own parents, rather than third parties.

There are situations in which the parent who is to have care of a child at a given time cannot care for that child. This is not uncommon and can happen for a variety of reasons, including changes in work schedules, emergencies like a leaky roof or a car problem, or even illness.

Depending on the duration (length) of such periods and/or their frequency, the parents may want to address what is to happen in such situations ahead of time. Such clauses in a Separation Agreement or a Parenting Plan are entitled “Right of First Refusal” or “Assuring Priority of Parental Care”.

What might such a clause say? That if a parent is unable to personally care for a child on their scheduled time, that parent will give the other parent an opportunity to care for the child first, before turning to third parties for assistance.

Many parents do not need such a clause in their agreement. In fact, parents deserve a measure of autonomy in caring for the child on their time, and this includes dealing with reasonably short absences.

What parents do provide for, from time to time, is a specific period of absence which would trigger the other parent’s possible involvement. For example, the clause might say that if a parent having care of the child cannot provide personal care for more than, say, 6 hours, the other parent will be approached first, given the opportunity to fill in, before other arrangements are made, before grandparents or a babysitter step in to assist, for example.

There are no hard and fast rules about such clauses or even arrangements: - they are dealt with on a case by care basis, so that the needs of each separated family are addressed in an individualized way.

By way of a measuring stick for potential negotiations on this point, let’s ask: how would the Court approach this issue? The overriding test before family Court would be the child’s (or children’s) best interests, not any child but that child. The second (subordinate) principle applied would be maximizing each parent’s time with the child. Again, each case is dealt with by family Court on a case-by-case basis.

If you are interested in this topic and might want to hear more, consider listening to an episode I devoted to this subject on my SANE SPLIT Podcast.

©AJJakubowska