Right of first refusal clauses are often times found within Allocation Judgments (formerly Custody Judgments) and are useful when properly drafted and applied for their intended purposes. However, too often litigants view the right of first refusal as a tool to control or even keep tabs on the other parent.
Right of first refusal options are simply intended to prevent a parent party from leaving the child (ren) either unaccompanied or with someone other than the other parent for certain lengths of time during their regularly scheduled parenting time. The situation could arise when that parent is either unable or unwilling to personally care for the children during his or her time. It allows the parent whose time it would not regularly be to elect to care for the children when such a circumstance should arise.
Right of first refusal clauses must be thoughtfully crafted in order to be effective and enforceable. Parents should consider the age and maturity of the children to determine the length of time that should be used. Many parents believe that right of first refusal should only be triggered in the event the other parent is unable to care personally for the children on an overnight basis or for a period in excess of 6-8 hours (not including time when that parent is unable to car for the children due to work responsibilities). In any event, these clauses should be drafted and applied as means of safeguarding minor children, and not as a means to circumvent another parent’s time.
When drafting these types of clauses it is imperative to know the parties and the case history in order to foresee and prevent the likely scenarios that may arise and make all efforts to create language to address same.
Weiss-Kunz & Oliver, LLC attorneys are are well versed in drafting detail oriented Allocation Judgments to fit each client’s (and families’) needs. If you are in need of assistance, or believe you may be in the future, do not hesitate to contact us to set up a consultation.