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What Is First Right of Refusal in A Custody Agreement?

Law Office of Kari Holm Fawcett

Raising good kids can be challenging for any parent. If you live in a post-divorce family, though, you likely face additional hurdles to overcome. Fortunately, co-parenting allows you to continue to see your kids according to the terms of your custody agreement. 

Part of co-parenting involves deferring to your former partner’s parenting style. Still, as a divorced parent, you may have some anxiety about whom your ex-spouse chooses to have in his or her life. If you want to maintain some control, you may choose to include a first right of refusal provision in your custody agreement. 

First Right of Refusal Clauses 

Typically, parents have great latitude in deciding what to include in custody agreements and parenting plans. A first right of refusal clause simply requires each parent to offer the other the ability to care for the kids in his or her absence. Therefore, if your ex-spouse becomes unavailable to see the kids during a regularly scheduled visit, he or she must ask you to take them before hiring a babysitter or enlisting the help of a friend or family member. 

Some Benefits 

There are a few advantages to including a first right of refusal provision in your custody agreement. First, you can maximize the time you spend with your children. Also, you can keep some control over the individuals your former partner chooses to watch your kids. Further, you may give your ex-partner a ready resource to help him or her meet work or other obligations. 


When negotiating a custody agreement or parenting plan, you likely have some flexibility. That is, you may be creative with wording to maximize the effect of the parenting contract. While a broad first right of refusal provision may meet everyone’s needs, you may choose to tailor the clause narrowly so that it only applies in certain situations. 

Having a first right of refusal provision in your child custody agreement or parenting plan may help you parent better in your post-divorce family. By thinking about the advantages and drawbacks of such a clause, you increase your chances of drafting an agreement that works for you.