April 26, 2023

By Denise Banks-Wilson

Tell me more… the First Rights of Refusal clause and what you need to know

The First Rights of Refusal clause can be one of the most frustrating requirements of the parenting plan, particularly for parents who believe the clause grants their co-parent an opportunity to pry into their private life. This clause requires that the (at the time) residential parent offer the co-parent more time with the children, should they need to be away from the children during their parenting time. For example, if during your parenting time you will need to be away from the children – before allowing a friend or family member to care for them – you are required to grant your co-parent the “first right to refuse” the additional parenting time. If you’re planning to include the FRR clause in your parenting plan, it’s important to address four items:

TRIGGERS: Under what circumstance am I obligated to offer my coparent the additional parenting time? Some jurisdictions activate the FRR clause under both planned (i.e., a prior scheduled social event) and last-minute (i.e., an emergency run to grab a friend that’s stranded on a flat tire) situations. In some instances, the trigger is based on the duration and/or frequency of absence (for any reason). For example, if you’ll need to be away for more than (X) length of time or at a predicted frequency, you are required to offer the additional parenting time.

TIMEFRAME: How much time must I allow my co-parent to either accept or decline the offer of additional parenting time, before I can secure other childcare? If the need for your absence is an emergency, time may not always be on your side… making the convenience of taking them to your sister living less than five minutes away seem both more attractive and more sensible. Given that in many high-conflict relationships sensibility is sometimes lost, it’s important to understand your options.

EFFORT: If the co-parent is unavailable to receive notice through our agreed upon means of communication (specified elsewhere in the parenting plan), what further effort am I required to make regarding the opportunity for additional parenting time? This question is important considering the likelihood that you personally deem the absence to be “necessary”, but neither pre-planned nor an emergency.

TRANSPORTATION: If my co-parent accepts the offer of additional parenting time, are they required to retrieve the children, or will I be required to transport them? Don’t assume that the transportation clause for the regular parenting exchanges applies here. Transportation arrangements for prior planned events may be understood by all parties, while the need for transportation during an emergency may not.

Co-parenting after separation and divorce is tough stuff. That’s why it’s important to ensure that your parenting plan takes into consideration not only the needs of your child, but also the reality of your co-parent relationship.

I can help you create a rock-solid parenting plan that maximizes flexibility and minimizes the opportunity for chaos and confusion. Let’s Talk!

The information provided is not intended to be considered as legal advice. Consultation with your legal representative is advised.

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