What is a Right of First Refusal for Parenting Time?

It is the other parent's right to spend time with the children if you are unavailable to be with them during your scheduled time. It obligates you to offer that time to the other parent before arranging for a third party (like a family member, friend, or babysitter) to care for your children.

This is an option, but not a requirement, in Maryland parenting plans and agreements and custody orders.

What does a Right of First Refusal consist of?

Generally, it involves:

• Informing the other parent of your unavailability and when you will be unavailable;
• Offering that time to the other parent;
• If the other parent accepts the offered time, then coordinating the transitions and the children being with that parent during your scheduled time because you are unavailable; or,
• If the other parent does not accept the offered time, arranging other childcare.

Separated parents who co-parent well are able to do this fairly easily. And, may do this even if their parenting agreement or court order does not require it.

Separated parents who do not co-parent well (or at all) often face challenges with a Right of First Refusal. So, before agreeing to a Right of First Refusal, consider the challenges and the benefits.

What are the challenges with a Right of First Refusal?

First, it can be a way to keep tabs on the other parent. This is especially so if the Right of First Refusal applies to any amount of unavailability. A parent going on a date or out with friends may be required to offer parenting time to the other parent before scheduling a babysitter. This informs the other parent of one's comings and goings and invites discussion about what a parent does with his/her time after the separation.

Second, if there is no minimum amount of unavailability triggering the Right of First Refusal, a parent may be obligated to offer time to the other parent for minimal amounts of time. This can be disruptive to the children and impractical. This can be avoided by including a minimum amount of unavailability, such as for an overnight or 8 hours or more.

Third, Rights of First Refusal are extremely difficult for parents with poor communication. Last minute offers of parenting time may be difficult or impossible to accept. Last minute responses from the other parent may make arranging alternative childcare difficult or impossible. Parents with communication boundaries use offers of time to interrogate the offering parent about his/her plans or berate fro his/her unavailability.

Fourth, an ambiguously written Right of First Refusal can have the unintended consequence of limiting a parent's ability to schedule playdates and sleepovers with family and friends, when the scheduled parent is not present.

Fifth and something I had not considered until recently, is that a Right of First Refusal may be more confusing than beneficial for the children because it may blur a child's perception of parenting time boundaries and consistency. If Tuesdays are one parent's parenting time, but that parent is unavailable on a particular Tuesday, then it becomes the other parent's parenting time.

Lastly, a Right of First Refusal can be difficult and costly to enforce.

What are the benefits of a Right of First Refusal?

If specific and well written, a Right of First Refusal:

• Maximizes a child's time with both parents, rather than in the care of third parties.
• Can save money, rather than paying third parties for childcare.
• Deter insincere requests for parenting time, if a parent knows he/she will not likely be able to fulfill a particular parenting time schedule and is required to offer unavailable time to the other parent.
• Deter marginalization and alienation of the other parent.
• Alert a parent to the possible need to modify the parenting time schedule, if a parent is no longer able to fulfill his/her parenting time obligations. Alternatively, provides a mechanism for temporary and time-limited adjustments to the schedule.
• Models child-focused co-parenting for the children, despite separate household.
• If successful, builds the co-parenting relationship, setting the stage for future flexibility when circumstances arise not contemplated by the custody order or parenting plan. For example, flexibility for schedule adjustments for special events, travel, or holidays.

What should be included in a well written Right of First Refusal?

A well written Right of First Refusal should contain:

• A specific amount of time that triggers the Right of First Refusal;
• A clear statement that the parent's unavailability triggers the Right of First Refusal;
• A specific communication timeline - to offer and accept parenting time;
• Whether the Right of First Refusal expires when a child reaches a certain age; and,
• If appropriate, when the Right of First Refusal does not apply, such as work-related childcare, playdates, sleepovers, etc.

In conclusion, before simply agreeing to a Right of First Refusal, think about whether this is the right fit for you, the children, and the other parent. The lack of a Right of First Refusal does not stop you from offering parenting time to the other parent when you are unavailable. But, without one, neither parent is required to offer the other the opportunity to care for the children when unavailable during his/her scheduled time.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on LinkedIn, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.