What: The ‘right of first refusal’ is a clause commonly found in parenting agreements. A right of first refusal means that if a parent cannot care for the children during their ordinary parenting time, then they must ask the other parent if they can provide child care before asking someone else (ex. family member or caregiver) to care for the children.
The mother is scheduled to have the child over the weekend but has to go out of town for work. The mother must ask the father if he can care for the child, and if he can, then the child must be with him over the weekend. If the father cannot care for the child, the mother can make alternate arrangements (ex. staying with grandparents or a caregiver). The mother cannot arrange for the child to stay with her grandparents before asking if the father is available.
Why: A right of first refusal ensures that children will not be cared for by a third party if either of the parents is available. Parents can agree to put limits on the right of first refusal as follows:
• Limited right of first refusal: the parents agree that the right of first refusal will only apply if the parent cannot care for the children for 3 hours or more during their ordinary time. Parents can select any time frame that works for them –> 6 hours, 1 day, 2 days.
• Unlimited right of first refusal: even during short periods of time away (i.e. less than 3 hours) the parent who cannot care for the children must offer this time to the other parent.
Why Not: The right of first refusal can also create problems.
• A right of first refusal may lead to extra pick ups/drop offs, where parents will be in contact and conflict can arise.
• If the right of first refusal is unlimited, the parent who is not caring for the children may create an issue if the children are spending time in the care of a third party. If this issue arises, the children are at risk of losing time with the third party (who are commonly grandparents, or extended family members).
• A right of first refusal may be unnecessarily disruptive. For example, if the children are scheduled to be with their father and he has to go out for a short period, it may be less disruptive to have a caregiver come into the father’s home and care for the children, instead of having to transport them to and from their mother’s home.
Next Steps: If you have children and are in the process of a separation, speak with a family lawyer to learn more about a right of first refusal and if it would work for your family.