The Right of First Refusal - Is It Really in the Child's Best Interest?

What exactly is the Right of First Refusal? The Right of First Refusal requires a parent in possession of the children to notify the other parent if they are going to be away from the children for a certain extended period of time while in possession of the children. This allows the parent not in possession of the children the ability to have the children in lieu of the other parent having someone else watch the children.

Generally, in Texas the Right of First Refusal is an agreed upon provision in a final order involving children as it is not a specific law found in the Texas Family Code. I have seen different variations of the Right of First Refusal depending upon the situation. For example, the time period stated that a parent will be away from the child and therefore must notify the other parent can range from four hours, to overnight, to a certain period of days. Some provisions state that the Right of First Refusal is not invoked if the child is in the care of a family member or at a friend’s sleep over.

As reported by Fearless Fathers, Illinois is in the process of trying to pass a law that makes the Right of First Refusal mandatory in all cases involving children. In my experience, a Right of First Refusal provision can create many issues in the co-parenting relationship that can in turn make the Right of First Refusal unworkable. It is important to fully explain to clients how the Right of First Refusal works as well as give clients examples of present day situations that would invoke a Right of First Refusal.

Here is an example I always give to clients considering a mutual Right of First Refusal:

“What if during your one month summer period of possession you would like to send your children to stay with your parents for a week? It seems reasonable doesn’t it? However, if your Right of First Refusal states that it will be invoked if you are going to be away from your children overnight, the provision does not permit you to have your children stay with your parents if you are not going to be present. Therefore, it is important to state that the provision does not apply in situations in which a family member is watching the children.”

This same example can also be used if you want to send your child to summer camp. The Right of First Refusal would not permit this absent the other parent’s agreement. Therefore, it is imperative to explain to a client all the different situations that can arise in regular day to day life and how the Right of First Refusal can affect how a parent will have to handle those situations.

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