TOOL OF THE DAY: Right of First Refusal
CATEGORY: Family Law Statutes
“Right of First Refusal” is the hidden door that gives narcissists and domestic abusers a free pass to continue to harass you. We discuss this later in the post, but first let’s address how you might think that it is a good thing to have in your order.
“Right of First Refusal” might sound good to you at first.
Of course, you should have your children if the other parent doesn’t right? Not necessarily. Let’s think this one through.
Here was our thinking when we first went through divorce:
“I have a right to be with my children when the other parent is not.”
Ever say that one?
“I should be able to be with my kids when the other parent is not available.”
“I should have the kids, I’m the one home, not her (or him).”
“My job is the flexible one and works around the children’s schedules, so they should come home to me every day.”
“I was always the one to take care of the children, I should continue to be that person.”
“Who wouldn’t want their mother or father taking care of them directly? That’s what’s best for my children anyway to have a parent taking care of them.”
There’s nothing wrong with wanting to be with you children as much as possible. And I think that most of us wanted to be the ones to raise our children ourselves. Many of us didn’t even like the idea of a daycare taking care of them. And now we are faced with not only having to lose them part of the time to a parent that maybe you don’t even get along with anymore, and now you’re being told that if they aren’t available you might not be guaranteed to have your children during that time either!
Let’s take a deeper look at why “Right of First Refusal” might not be a good idea and why some of our life views might need to be taken off that old windshield and put away permanently.
If we truly believe that we all have individual rights and that the laws should apply equally to everyone, then we cannot pick and choose when it applies to the other parent and when it does not. Think about this, do you really want the other parent influencing your children more than you want them to, especially if they are negative about you or don’t support your bond and relationship with the children? What if you are the one that isn’t available as much? And when you let this kind of thinking take precedence over your rights, you just might find the court thinking this way too, and you might end up with nothing more than a couple of weekends a month based on you being less available than the other parent! Now “Right of First Refusal” might not be looking so good. Or you might be thinking, doesn’t sound so bad, you like the other parent still and you don’t mind them caring for the child when you are not around. But hang on, stay with me here… (you can always make those decisions without a court order taking your rights and time away or controlling how you exercise them.)
Once I really started applying the concepts of constitutionalism, I realized that some of my world views made it difficult to accept some of the outcomes. But I wasn’t willing to give away my rights to be free of government interference or to continue to have my family privacy, or to be able to make decisions in my child’s life without government interference.
I had two parts of my brain fighting each other on this one. On one hand, I wanted my children every second the other parent wasn’t available and didn’t have them. I wanted to be able to decide what they were exposed to. But then on the other hand, I also didn’t want to be constantly harassed by the other parent every time I wanted to go somewhere and if I wanted to have someone else take care of them while I was gone. I didn’t want to constantly have to give the other parent my schedule and have to answer to them or have them pick on the person who I wanted to leave my children with that day. What if my parents or sister wanted to have the children during some of my time? If I had a “Right of First Refusal” I might have to give them to the other parent instead.
Plus, what if you are dealing with a narcissistic other parent or one that has committed domestic violence against you? Putting “Right of First Refusal” into your parenting plan is a recipe for disaster. You don’t want to give them anything else to control you over or opportunity to stalk or harass you. And boy will a narcissist and abuser use this as an excuse to know every minute of your schedule, every day!
And think about this, what if you get re-married? Do you want the step-parent to be able to care for your child when you are not there? How will the child and the step-parent bond? And remember this is just during your time (and that time should be equally divided) so this shouldn’t be a huge issue. We understand that when there is a serious unequal division of time that the noncustodial parent wants this time because it is an opportunity to make up for time that they have had taken away from them. This is a different problem though because you have been deprived and you are using it to compensate for some of that deprivation. We are not saying not to use any technique you can to keep as much time with your child as you can if you are being deprived.
Let’s apply some actual constitutional perspectives here. Additionally, it is your 1st amendment right to influence your child how you see fit within the law. As we mentioned above, wanting to place your child with someone who supports your bond and relationship with your children and your beliefs and values is one of your rights. You won’t be able to do this if you have a Right of First Refusal.
Lastly, not having a “Right of First Refusal” in your order leaves you with power and leverage to get the other to behave better. Let’s say you and the other parent are getting along at the time you make the agreed parenting plan or at the time it is ordered. And then you two stop getting along. Perhaps the other parent re-marries or finds a new mate and changes all of their beliefs or starts taking your child to things that influence them in ways you don’t agree with? With no Right of First Refusal you will have the option, without going to court, to change who cares for your child during your time. Thus, limiting the influence you are against. You get to influence them during your time and the other parent during theirs.
This just reduced litigation if nobody could use this against the other parent.
What if YOU got re-married and wanted your new spouse to influence your child when you were not there? We are not saying to use this to alienate the other parent. You are not creating a situation of parental alienation if you are not using any of the other parent’s time. (They will see it as their time if you have a Right of First Refusal though.) You are sharing your time with the step-parent. You won’t be able to do this if you have a “Right of First Refusal” and have to give your child to the other parent if you are going to be unavailable during your time. What if your new spouse and child need to bond with each other? It’s difficult if the new spouse isn’t allowed to be with your child when you are unavailable.
Some people have asked, “What if I make the “Right of First Refusal” for only if the other parent or myself is going to be unavailable for more than 24 hours? We don’t even recommend putting it in then either. See the paragraph above on narcissitic abusive behaviors. They will still want and say they have grounds now to always know your schedule, etc. This is just an invitation for them to be nosy and harass you and try to continue their obsessive behavior to control your life.
Again, you have the right to determine who cares for your child in your absence. What if you want your parents to care for your child? Your time can be shared with other relatives. Giving YOUR time to the other parent takes from your child and the other relatives.
In addition, you give up the leverage we mentioned earlier — the leverage to encourage each other to get along. When you each play nice, the other probably doesn’t generally have a problem with you caring for the children in their absence.
So you will have this to negotiate with the other parent. Sometimes you can let the other parent know (not talking about narcissistic personalities now) that if they are supportive of your relationship with you and your child that you are happy to have them care for the child when you are unavailable. You can make a separate agreement outside of court for this if you choose.
SOLUTION: You might want to, instead of putting a right of first refusal into your agreement, add a clause that says that even if one parent or the other is exercising more time because of an agreement the two of you make that this is not a conveyance of your rights to that parent or grounds for seeking a change in custody to encourage the other parent to not be afraid to give you more time.
We’ve seen orders like this and they are helpful so that neither of you will feel threatened about losing your rights to the time with your child if you do need to make different decisions regarding the time you get to spend with your child at different stages of your child’s life. You didn’t need a right of first refusal for that. And you don’t have to keep going back to court.
This protects you if perhaps you have to make an employment decision to work more hours because you would like to retire earlier and have more time to spend with your family. These are decisions that in the marriage you could make (supposedly) without any worries about losing your rights to time with your child. But now in divorce you have to worry about those decisions.
So a possible solution for that is to add that extra clause in there that the parents agreement to share time different than what is in the parenting plan is not a conveyance of your rights or grounds to change custody. No ROFR needed.
RECOMMENDATION: To wrap it up so there is no confusion, our recommendation is to keep away from that “Right of First Refusal” in your agreement and definitely keep away from it in Legislation.
A side note, is that if you are telling your legislator that it is unconstitutional, this will be a tough hill to climb. They will not see this as unconstitutional and most likely would argue that a policy like this is not stopping you from influencing your child. So just keep it out of your contracts and keep it out of your laws!
Best wishes to all of you.
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
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