The Right of First Refusal

Florida Custody Attorney

Although not legally required in Florida, many families choose to include a right of first refusal provision in parenting plans drafted during custody proceedings. The right of first refusal means that in the event that a custodial parent is unable to care for the child, the non-custodial parent must be given the option to take responsibility for the child before the services of a daycare, relative, or babysitter, are engaged. Furthermore, the time spent caring for the child when he or she would otherwise be in the care of another person does not count against the non-custodial parent’s allotted time under the parenting agreement. Custody disputes can be emotional and stressful for all parties involved, so if you or a loved one are considering divorce, it is important to retain the services of an experienced attorney who can ensure that the process goes as smoothly and quickly as possible.

Drafting a Parenting Plan

There are a variety of factors that parents should consider before deciding to include a right of first refusal provision in a parenting plan, including:

  • Whether there is a history of domestic violence;
  • Whether the parents can provide transportation for the child during the refusal period;
  • How close the parents live to each other;
  • The amount of notice the custodial parent is required to give the other parent in order to exercise the right;
  • The amount of time the non-custodial parent is given to accept the right;
  • Whether there are any situations where the right of first refusal could not be exercised; and
  • Whether the parents’ relationship is amicable enough to be conducive to the increased communication required to exercise the right of first refusal.

If these issues can be resolved satisfactorily, the parents can begin addressing the details of the arrangement.

Situations Covered Under the Right of First Refusal

When drafting a parenting plan that contains a right of first refusal, the parties should specifically indicate which situations are covered by the right. Possible situations include:

  • After-work daycare;
  • Social engagements;
  • Doctor’s appointments; or
  • Vacations.

The parenting plan could also indicate whether the right becomes available if the custodial parent will be absent for a certain amount of time. For example, the right of first refusal clause could be written so it kicks in if the custodial parent will be absent for more than five hours.

As children grow and mature, the right of first refusal agreement may become unreasonable in light of extracurricular activities, relocation, or other changes in circumstances. In such instances, the parents may modify the original parenting plan, as long as both parties consent, and the changes are submitted to the appropriate court on time. If one party does not agree to the changes, the parent who wishes to modify the agreement must submit a motion to the court and present evidence at a hearing that the change is in the best interests of the child.

It is important to draft a parenting plan that facilitates parent-child relationships while also serving the child’s best interests. This can be a difficult balance to strike, so if you are in the process of creating a parenting plan, please contact West Palm Beach family law attorney William Wallshein to schedule a free initial consultation.