The Right of First Refusal and Parenting Time

In a divorce or custody matter, each parent is allocated parenting time with the minor children. A parent’s schedule with their children may be every other weekend, it may be one week on, one week off. No matter what the parent’s schedule is, the parenting time is for the parent and no one else.  Many parents, however, will pick up their children and then just drop the children off with their mother, a daycare, or their new partner. Parents who won’t even spend all of their parenting time with their children still ask for time with their children in order to reduce child support. Child support is usually determined by the parents incomes and the overnight visits the children have assigned to each parent.

When a parent is not watching their children during their parenting time, that parent usually has a duty to alert the other parent to the fact that they will be absent. The other parent then has the option to exercise their “right of first refusal.” The right of first refusal is the option of the parent who is not exercising parenting time to be the first person the parent who is exercising parenting time asks to watch the children. So, before a parent hands his or her kids to their mother for the day, that parent must call the other parent to see if the other parent would like to watch the children in lieu of a non-parent.
If the other parent objects to a 3rd party watching the children, the other parent must watch the child themselves and not just elect another 3rd party. So, you cannot say, “I don’t trust your mother, I’m going to pick the child up and put them in daycare.” Every parent knows that you cannot watch your children constantly. It may be necessary to run to the store and have a relative or friend watch the child for a short period of time.  In these small windows of time, it is not necessary to alert the other parent to their right of first refusal. The parenting plan will usually have a time period of absence where the right of first refusal must be offered. Four to twenty-four hours is the standard window of time depending on the ages of the children.
The right of first refusal does not apply if the child is in some sort of enriching activity during the parent’s absence. School and extracurricular activities are not the absence of a parent for the purposes of exercising the right of first refusal. Most parents never have to announce “I’m invoking the right of first refusal” because they are co-parenting maturely and effectively. It is easier to communicate casually like two human beings and simply say “I have to work late on Thursday, do you mind if my mom picks up the child from preschool?”
Sadly, some parents are never able to communicate in a non-confrontational manner. Therefore, the right of first refusal clause in their parenting agreement is their best option for ensuring that children spend as much time with their parents as possible.
Russell Knight is a divorce lawyer in Chicago, Illinois