Rights of First Refusal in Parenting Plans

Photo of Jeffrey A. Soilson

One of the main issues facing divorcing and separating parents is to establish a parenting plan when each party provides care and custody for his or her children. There are a number of different parenting plans that can be negotiated or ordered. Under any such plan, the challenge is for one parent to respect the parenting time of the other parent. Often, one parent wants what is called a “right of first refusal.” This is when the parent who is not scheduled to have the children is under a contractual right to receive notice from the parent who has the children, but is unable to parent during any specific period of scheduled parenting time. Under those particular circumstances, the parent who is scheduled to be with the children must notify the other parent that he or she is unable to parent for one reason or another and offer the other parent the opportunity to have additional parenting time. This would be in lieu of asking a babysitter, family member or friend to step in and provide childcare during those periods.

The problem with this approach is that in high conflict cases it gives each parent an opportunity to micromanage the parenting time of the other parent. It provides a platform for ongoing dispute, and it does not give each parent the right to determine whether he or she will be in control with respect to childcare during his or her respective parenting time. It reduces the flexibility that one has to allow the children to spend time with grandparents, friends of the family, or to engage in play-dates, etc.

Most experienced practitioners will agree that the right of first refusal is counterproductive when the goal is to help parents engage in parallel parenting plans so as to reduce the possible points of contention. The goal of such a plan is to reduce interaction, transitions, and to encourage each party to provide the other with notice and information, but to not exert control over him or her, and perhaps continue the negative dynamic that may have resulted in the breakdown of the relationship between the parties in the first place.

In other cases, where there is lower level of conflict between the parents, and there is a collaborative approach to parenting, it is more likely that the right of first refusal will be extended and exercised naturally, whether it is by contract, court order, or simply as a result of cooperation in co-parenting between the parties. The collaborative approach to co-parenting is certainly a goal for all families grappling with divorce and separation to achieve. As one well-esteemed Probate and Family Court Judge likes to say to parents at their final divorce hearing, “As of today you are no longer a married couple, but you will remain co-parents forever.”


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.