Right of first refusal in a parenting plan: questions to settle before you agree

Parenting plans are full of small clauses that look harmless on paper. One of the most talked about is the right of first refusal. Walther, Antel & Stamper has written about it on the firm's blog, under a headline that called it a "Pandora's box." That is a vivid way of saying that a clause that sounds sensible can open up more questions than it closes.

This article is a general look at what the clause tends to do and what is worth thinking through before you agree to one, ask for one, or live under one.

What the clause usually says

In general terms, a right of first refusal says that if one parent needs someone else to watch the children during their parenting time, that parent must first offer the time to the other parent. Only if the other parent declines can the first parent turn to a babysitter, a relative, or a friend. The idea is to keep children with a parent whenever a parent is available.

Many parents like the idea at the start. Some see it as protection against a stranger or a new partner watching the kids. Others like that it can mean more time with the children for a parent who wants it. Those are fair goals. The trouble is in the wording and in how the clause behaves once real life gets going.

Where the questions start

A clause that sounds simple leaves a lot to decide. These are the gaps that most often cause arguments later:

• How long an absence triggers the offer: an evening out, a few hours, a full night, a weekend?
• How is the offer made, by text, phone, or email, and how quickly must the other parent answer?
• Who drives, and who pays for any extra travel, when the offer is accepted?
• Does it apply to school hours, daycare, and regular activities, or only to unplanned absences?
• Who counts as a sitter? Does a grandparent, an older sibling, or a partner count?
• What happens when the parents live far apart?
• What if a parent works nights or travels often, so the clause would be triggered all the time?

A clause that does not answer these questions invites disagreements, and disagreements over a clause tend to land in the children's laps. The more clearly the plan speaks, the fewer arguments you are likely to have.

How it can help and how it can strain

Used well, the clause keeps children with family and gives both parents more chances to be present in their lives. A father who would otherwise miss a Friday night with his kids gets the chance to have it. A mother whose shift runs late knows the children will be with their other parent, not a stranger.

Used badly, it becomes a way to monitor the other household. A parent who gets a text about every errand may start to feel watched. A parent asked to take the children for ninety minutes on short notice may feel put upon rather than included. And a parent with a settled childcare routine may find that the clause turns a quiet arrangement into a stream of requests.

None of this means the clause is a mistake. It means it works best when both parents are reasonably cooperative and the plan spells out how the offer works.

Think through your own family first

Before you agree to a clause or ask for one, picture an ordinary month and ask yourself:

• Where do the children spend most of their time, and who already helps with their care?
• How far apart are the two homes, and how do the children get between them?
• Do both parents' work schedules allow the clause to function without constant friction?
• Is there a trusted relative the children are close to, and would the clause cut that person out?
• How well do you and the other parent communicate right now, and will the clause help or strain that?

Some families choose a clause with a minimum length of absence before it applies. Some limit it to overnight stays. Some skip it and rely on good faith. None of these is right for everyone. They are choices to make with your eyes open, and a lawyer who has seen how clauses play out can help you test the wording against your own routine.

If the clause is already in your plan

If you are living under a plan that includes a right of first refusal and it is not working, do not simply stop following it. Write down what is happening, keep your messages civil, and talk to a lawyer about whether the plan can be clarified or changed. Missouri has its own rules on changing a parenting plan, so ask how they apply to your situation before you act.

If you are the one who feels the clause is being ignored, the same advice holds. Keep a calendar of what was offered and what was not, and bring it with you. Records of what actually happened are more useful than a general feeling that the clause is being used unfairly.

Gary Stamper handles custody, support, paternity, and divorce at Walther, Antel & Stamper. To talk about a parenting plan, call the office at (573) 442-2454, Monday through Friday. Reading this article does not create an attorney-client relationship.