What Is “Right Of First Refusal”? Why This Clause Should Be In Your Custody Agreement

If you're getting divorced or otherwise separating from a partner with whom you have a child, a shared custody agreement will be your number one concern. In a perfect world, you're parting ways amicably and able to talk through a rational agreement that works for both parents while making the child (or children) the top priority. In reality, splits and custody talks are rarely amicable — which is precisely why the term "right of first refusal, or ROFR, should be in your divorce vocabulary.

Since divorced parents often fight over everything from paying for clothing to school tuition, mediators frequently step in to help sort things out and make sure at least someone is putting the kids first. It's along these lines that the right of first refusal comes into play. This simple clause can be a game changer for most custody arrangements and can help both parents feel more settled and secure when it's not their turn with their child.

To help explain, I asked experts for their insight. Here's what they had to say.

What is the "right of first refusal"?

Consider this the "call me instead of a babysitter" clause.

"Putting it simply, the right of first refusal enables a parent to take the first shot at spending time with their offspring before the other parent considers involving a third-party caregiver such as a babysitter or another family member," says Laura Wasser, a family law expert at Divorce.com. "This clause is discretionary and can be integrated into custody agreements if it aligns with both parents' consensus."

Why is the right of first refusal beneficial?

When it comes to co-parenting, one of the biggest concerns parents have is a lack of control over their children's safety and well-being while they are with the other parent.

You vet your babysitters thoroughly... but will your ex? You don't trust your co-parents' in-laws, but your ex might think of them as the best babysitter in the world. With a right-of-first-refusal clause, your custody agreement can stipulate that your ex contacts you first to ask if you can keep your child when they can't and would otherwise need to hire a sitter.

"This clause is dual-beneficial, favoring the parent and the child," says Wasser. "It strengthens the bond between parent and child by presenting extra avenues for interaction and furnishes the child with an aura of safety and regularity. Parents who can work collaboratively for their child's welfare and have adaptable schedules may see this clause as highly beneficial."

When might this fail?

"The right-of-first-refusal clause doesn't align with everyone's needs," Wasser admits. "In situations characterized by intense conflicts or practical barriers such as significant distances between parents' homes, the usefulness of the clause could be diminished."

In other words, in highly contentious custody battles or in situations where co-parents live farther away, this may not be a feasible option. A controlling or abusive ex might deny your request for the right of first refusal because they want to isolate you from your child. Living further away may also make it harder for you to step in and take care of your child "for the night" in the middle of their stay with the co-parent.

"There are several other things to consider: In my practice, my clients who are homemaker parents typically prefer a right of first refusal in their custody agreements, but it's typically unrealistic if that parent resumes a working schedule," shares Nicole Sodoma, a divorce attorney and author of Please Don't Say You're Sorry.

"Likewise, when there is a working parent and a homemaker, the working parent may want to offer the right of first refusal to the other parent while they work (regardless of travel), essentially using them as a babysitter while not providing additional financial support,” she explains. “These types of right of first refusals may be great during an initial transition but may not be a long-term solution depending on the family's financial circumstances and ability to effectively communicate because ROFRs tend to create significant additional communication between parents."

Does having this clause mean you must accept every request?

Absolutely not. "Refusal" is literally in the clause's title. It simply stipulates that your co-parent must check in with you before going to other parties. If you're working or if you do trust them and enjoy your free time, you can still refuse.

Are there similar clauses that might be useful in custody agreements?

"Another provision that may be considered is a 'flex day' opportunity," suggests Sodoma. "For example, say the children are not with you, and you have tickets to a concert you know they would love to attend. Both parents can have a certain number of flex days to select throughout the year. Like rights of first refusal, there are various issues to consider: no rollover, the children can not have previously scheduled plans or a holiday that supersedes the regular schedule, and there should be sufficient notice.”

Sodoma continues, “But like rights of first refusals and makeup days, the courts are not particularly fond of these provisions because they require additional communication and opportunities for conflict. For them to work in the children's best interests, communication between parents should be strong and effective."

Are there other ways to use the right of first refusal?

While the right of first refusal is typically used for co-parents in custody agreements, it's worth noting that it sets a precedent and could be used in other situations. For instance, you, your co-parent, or both of you could stipulate a right of first refusal for family members. If only one set of grandparents has ever babysat your child, you could ask for them to have the right of first refusal.

While "first" may not apply in this case, you could even attempt to set it up so that, if you can't do it, the next step is to ask the grandparents or another trusted individual before co-parents go about hiring sitters. You can also add a right of first refusal to a will, in which a deceased parent stipulates that the living parent contacts their family members before calling a sitter. The goal is to hopefully ensure a sustained relationship with both sides of the family.

"As for the relevance of this clause in different contexts, hypothetically, it could be incorporated in a solo parent's will," says Wasser. "Here, it offers the appointed guardian the first opportunity to look after the child before calling upon a babysitter or another external party. This clause could be adapted to honor the parent's preference for familial care, as long as the arrangement prioritizes the child's best interests."