What Should You Know About the Right of First Refusal?

The right of first refusal is a legal contract clause that can apply to assets, transactions and also to parenting agreements. The clause requires the party to first offer the specified party the offer before offering it to anyone else. For parenting, it is a mutual agreement that parents offer each other the right to watch their children before extending that right to someone else, such as another family member or babysitter.

On the surface, applying the right of first refusal to parenting sounds like a great idea. Indeed, it can be. However, you also want to consider various situations that can arise. There may be exceptions where you don’t want the rule to apply because it could lead to problems or conflict.

Situations Where the Clause Could Prove to Be Problematic

Here are some conditions to consider:

• Timeline. If you don’t specific a time period, the clause could be ambiguous and result in problems. For example, having a babysitter watch the kids for a few hours while you attend a wedding shower should not be a problem. What if you have to offer your ex that two-hour opportunity and he or she lives two hours away? Now you must drive four hours round trip in order to spend two hours away from your children. Generally, it is wise to have such clauses state a time period, such as overnight or over an 8 to 12 hour period.
• Summer camp. Summer camp can be an exciting time for children, but if you have a clause that does not address the possibility, then the other parent would have the first right and would have to approve summer camp.
• Living at a distance apart. If you and your ex live far apart, it may not be practical to have such a clause due to time spent traveling.
• Communication difficulties. Some divorced couples experience conflict when they communicate. An antagonistic divorce or other difficulties getting along can result in communication problems. Limiting the circumstances where you have to communicate may be in your best interests. Not having a first right of refusal clause would tend to reduce the need to communicate.

There are also other situations to consider. You should consult with an attorney before adding a first right of refusal clause into a parenting agreement.

Little & Logue can help you deal effectively with divorce and family law issues.