What Is the Right of First Refusal in Regards to Your Children?
When parents share custody, managing schedules, childcare, and unexpected events can be challenging. One provision that can help parents work together more smoothly is the right of first refusal. This clause can be added to a parenting plan or court order in many family law cases.
But what exactly does it mean, when does it apply, and how can it benefit or complicate co-parenting? Below is a clear explanation to help you understand how the right of first refusal works.
What Is the Right of First Refusal?
The right of first refusal is a custody provision that gives the other parent the first opportunity to care for the children when the parent who currently has possession cannot do so.
In simple terms:
If you can’t watch the kids during your scheduled time, you must offer that time to the other parent first before asking someone else or hiring childcare.
Why Parents Use the Right of First Refusal
This clause is meant to:
- Increase each parent’s time with the children
- Reduce the use of babysitters or third parties
- Support consistent relationships with both parents
- Encourage communication and cooperation
- Provide predictability and fairness in unexpected situations
When both parents are genuinely committed to co-parenting, this provision can reduce conflict and give children more quality time with each parent.
When Does the Right of First Refusal Apply?
The details vary based on what the parents agree to or what a court orders. Common examples include:
- Work Obligations
If a parent is required to work late, travel, or attend mandatory meetings.
- Emergencies or Unplanned Events
Medical emergencies, car trouble, or sudden schedule changes.
- Personal Situations
Social events, date nights, or other personal commitments.
- Overnight Care
Many right-of-first-refusal provisions are triggered when the parent will be away overnight.
- Extended Childcare Needs
Some orders apply when the parent will be away for a set number of hours (for example, more than four hours).
How Is the Right of First Refusal Written Into an Order?
The strength of this provision depends entirely on how clearly it is drafted. A good clause should address:
✔ The Trigger Time
How long the parent must be gone before the rule applies (4 hours, 6 hours, overnight, etc.).
✔ Communication Responsibilities
How and when the unavailable parent must notify the other (text, call, or specific app).
✔ Response Deadlines
How long the other parent has to respond (usually 30 minutes to 2 hours).
✔ Transportation
Who is responsible for dropping off or picking up the children?
✔ Special Considerations
Work schedules, travel distance, childcare routines, school nights, etc.
Clear language prevents misunderstandings and keeps the provision enforceable.
Benefits of the Right of First Refusal
- More Time With Your Children
Parents get additional parenting time they might not normally receive.
- Reduces Reliance on Babysitters
Children spend more time with a parent rather than a third party.
- Improves Co-Parenting Communication
Parents must communicate more regularly.
- Increases Stability for the Children
Children know they will be with familiar caregivers.
Potential Challenges to Consider
While helpful, the right of first refusal isn’t perfect for every situation.
- High Conflict Parents
If communication is tense or inconsistent, this provision can increase the likelihood of arguments.
- Work Schedules
Parents with unpredictable or rotating schedules may have difficulty complying.
- Long Distances
If parents live far apart, offering last-minute care may be unrealistic.
- Misuse or Overuse
Parents may use it to interfere with the other parent’s personal life or flexibility.
Because of these concerns, judges consider the specific facts of each case before ordering this provision.
Is the Right of First Refusal Required by Courts?
No.
Texas courts do not automatically include this provision. It must be:
- Agreed to by the parents in mediation, or
- Specifically ordered by the judge based on the children’s best interests.
Not all families need it, but it can be invaluable when both parents are committed to cooperative parenting.
When Should You Ask for the Right of First Refusal?
You may want to request this provision if:
- You want more consistent parenting time
- You live close to the other parent
- You have a good communication pattern
- Your schedules allow flexibility
- Your children do better with parental care instead of third-party childcare
It may be less effective in high-conflict or long-distance co-parenting arrangements.
Final Thoughts
The right of first refusal can be a valuable tool for promoting extra time with your children and supporting healthy co-parenting. However, it must be carefully drafted to match your family’s needs and minimize potential conflict.