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Kid Duty
The right of first refusal in custody cases and how it can backfire.
By Jonathan James
When you’re going through a divorce, the concept of the “right of
first refusal” in custody cases sounds perfectly rational if both you
and your soon-to-be ex-spouse understand the agreement and potential
consequences. If you are the parent in possession of the child(ren) and
will be absent for an agreed upon length of time, you will, in good
faith and before seeking alternate child care, offer that time to the
other parent.
Thus, your former partner has the first right to say no or yes to
possession before anyone else enters the equation. If the answer is no,
you are free to pursue other means of supervision. The idea is this, “If
I am unable to be with my child, who better than his or her other
parent?”
Sounds straightforward, right? Not necessarily. Many divorcing couples
agree to a right of first refusal if one party requests it without
thinking too much about it because it sounds reasonable. And it can be.
Until it isn’t. Divorce is difficult. Spouses find themselves angry,
hurt, sometimes irrational, demanding, or unforgiving as the process
unfolds. It can lead, even unconsciously, to a wounded spouse taking out
resentment in ways that seem nonsensical. When a party feels unheard,
mistreated, or marginalized, instigating unnecessarily difficult or ugly
interactions can be an off-kilter attempt to punish the ex or to right
what is perceived as an imbalance of power.
Over the years, I have seen the right of first refusal cause
unforeseen glitches. Some spouses insist the visitation time period be
two to four hours instead of eight or overnight, for instance, and the
other agrees without thinking it through. People run late, meetings go
long, and children are invited to sleepovers. Does that mean because the
time period will be longer than what was agreed upon, that the parent
not in possession picks up the child in the morning from a friend’s
house on what was supposed to be the other parent’s “time”? Or what if
exes decide to agree on the alternate caregivers—relatives—which works
perfectly until one party gets remarried and the new spouse is not
written in? If a parent must go out of town unexpectedly, must his or
her new spouse cede possession to the ex because the allotted time has
elapsed by the time tomorrow morning rolls around?
If the spouse is indeed “proven” to have gone over the agreed upon
number of hours, is this worth the cost of a hearing, attorney fees, and
emotional upheaval—or even enforceable in court for defying the decree?
Only when a party flagrantly disregards the right of first refusal
recklessly or repeatedly and said behavior can be proven—which is
difficult to do—will it yield any practical remedy in court. Even then,
it is no slam dunk. What it can be is a dangerous precedent. A gotcha
litigious existence can be launched, wherein ex-spouses feel compelled
to spy and tell on each other. The cost of a loss of good faith can be
steep and endless. Nor is it a good model for children.
Yes, if exes are reasonable, amendments or additions to a decree are
relatively simple—add a clause that states when the custodial parent
travels, the child can stay overnight with the new spouse. Done. Clarify
that sleepovers are exempt to right of first refusal and alternate
caregivers are up to the discretion of the parent in possession. Simple.
But better yet, do it the first time around because there is always the
chance that an ex will be steaming about another part of the settlement
and might allow negative feelings to enter a right of first refusal
situation. “Reasonable” isn’t a word that leaps to mind when enduring
the dissolution of a marriage. There is, after all, a reason the divorce
is happening.
Situations exist wherein the right of first refusal is incredibly
useful. Just be aware that it can also become complicated, like
everything else with divorce, and it would do you well to think it
through with your attorney carefully and judiciously.TBJ
This article, which was
originally posted on the Hance Law Group Blog, has been edited and
reprinted with permission.
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JONATHAN JAMES is an associate of the Hance Law Group, which exclusively handles family law matters ranging from complex property divorces and premarital agreements to paternity and custody disputes. James is very comfortable in the courtroom and makes a personal investment in his clients’ cases in order to achieve the best possible outcome. |
This content is for informational purposes only. Consult an attorney regarding specific legal questions.
