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Episode 85 Transcript: Right of First Refusal

In this episode, I want to talk about something called the right of first refusal, which is a clause that is in almost every agreement in the parenting section. Let me just start by first explaining what is the right of first refusal. The right of first refusal is the right of the parent who is not scheduled to be with the kids at a certain time on a certain day to be with the kids if the other parent, the scheduled parent, can’t be with them. It’s the right to be with the kids, to have preference ahead of any childcare provider or relative of the scheduled parent, ahead of anyone else, essentially. Put another way, if you are scheduled to be with your kids, to have them overnight on a given Wednesday night, but as a result of a work trip you have to take, you cannot be with the kids. You won’t even be at home overnight. You’ll be traveling Wednesday through Thursday. You can’t be with the kids. You must give the other parent, your co-parent, the first opportunity to be with the kids instead of you before you arrange childcare to cover for you on that night.

I would say that almost all, potentially all couples will agree to include this clause in their agreement because everybody would like the chance to be with their kids if the other parent is not going to be with them. I say the chance or the opportunity to be with their kids intentionally because what the right of first refusal is not is an obligation that the non-scheduled parent will take the kids if the scheduled parent is not available. So this is not about the other parent providing childcare if you have to work late and can’t pick up the kids, or you have to, again, travel for work, or maybe you have a family matter that you have to attend to with family out of state that you have to go to last minute, and it’s your weekend with the kids and you have to travel but you don’t want to take the kids with you. In all of those circumstances, it is the obligation of the scheduled parent to figure out coverage or childcare for the kids if they’re not available, and it is not the obligation of the non-scheduled parent to provide that childcare. What the right of first refusal grants is the opportunity to that non-scheduled parent to have the kids be with them if they want that, if they’re available, and if they’re willing.

It often also will speak to, in the right of first refusal clause, what amount of time away from the kids triggers the right of first refusal. Let me just concretize that with an example. You may choose to say that if either parent is going to be away from the kids overnight or longer, the right of first refusal kicks in, meaning they have to notify the other parent, give them the opportunity, not obligation, to be with the kids during that time. If the other parent is not available or not willing or not interested in being with the kids during that time, the traveling or scheduled parent has to come up with childcare. In that example, the triggering amount of time is an overnight. So an overnight or longer away from the kids triggers the right of first refusal. At the other end of the spectrum might be a trigger time of three or four hours away from the kids that if you were scheduled to be with the kids, and you had to, for work, personal, family, whatever reasons, you had to be away from them for four hours, you would be legally obligated to let the other parent know, to see if they wanted to be with the kids during that time, and if not, then and only then, to arrange childcare.

I want to make a distinction here which is important. It may very much be your intention that if you need to be away from the kids during, say, your weekend time with them for a period of three hours, you may think, “Well, obviously, I would let my co-parent know and if they wanted to be with the kids during that time, great.” You are always free to do that. You’re free to contact your co-parent if you’re going to be away from the kids for five minutes or 30 minutes or any amount of time. What goes in your agreement is the minimum amount of time that creates a legal obligation in every circumstance to notify your co-parent and give them a chance to be with the kids.

If you choose to say, let’s say that eight hours is the trigger for the right of first refusal, if the scheduled parent is going to be away from the kids for a period of eight hours or longer during their scheduled time they will notify their co-parent, give the co-parent the opportunity to be with the kids during that time, and then come up with childcare if the co-parent is not available. Now, you could have that in your agreement, and then if you’re going to be away from the kids for a period of three hours or four hours or five hours, all of which are shorter than eight hours, you can still notify your co-parent. Give them the opportunity. If they’re not available, then you come up with childcare. So, what you’re going for in the agreement is just the minimum amount of time that should create a legal obligation for the scheduled parent to notify the other parent and give them the opportunity to be with the kids. You want to think about it in this way rather than, in practice, what’s the smallest amount of time that would cause you to reach out to your co-parent because that might be a shorter amount of time. When you think about it in terms of, “Okay, but what amount of time should create a legal obligation to notify the other parent?” that may be a longer amount of time. So, you want to give some thought to that, and that should be specified in your agreement.

Another consideration that you want to keep in mind is just something to consider as you try to figure out what’s the right amount of time to trigger this right of first refusal. I think for many parents, they think, “Well, any amount of time because if I’m the non-scheduled parent, I would always want to be with my kids if I’m available. So I always want the other parent to have to let me know. If they’re not going to be with the kids during their time, I want the chance to be with the kids.” That makes a lot of sense, but you also want to consider that, for instance, depending on the ages of your kids, you might leave them alone for 30 minutes to go to the store. Technically, if you had no minimum time away from the kids to trigger the right of first refusal, that 30-minute period would trigger the right of first refusal.

When you get into shorter periods of time that trigger the right of first refusal, meaning that trigger the requirement on the scheduled parent to notify the non-scheduled parent that (a) they’re going to be away from the kids for this day or this amount of time, and (b) to offer them the chance to be with the kids, bear in mind that that also has you communicating a lot more the shorter the time period with your co-parent about your day to day schedules. “I’m going to IKEA for three hours. Do you want to take the kids?” “I have a soccer game and I’ll be away for two hours. Do you want to take the kids?” That creates a legal requirement for a lot more and more regular contact about your day to day schedule, which is something that both of you may not be as interested in. You want to balance how much micro-communication you want to have about day to day, hour to hour changes in your schedule or details of your schedule when you’re with the kids versus how much you obviously, as a parent, want to be with your kids if they’re not going to be with the other parent.

To give you a sense, I would say the most common trigger amount of time that I see for the right of first refusal in agreements is an overnight. I think for a lot of couples who have that in their agreement, they fully expect that for shorter periods of time, maybe they’re away from the kids for five hours or eight hours, they actually are going to be in communication with the other parent about whether the other parent wants to take the kids, but they don’t want to create a legal obligation to do that. Overnight is probably the most common amount of trigger time for the right of first refusal, but I also do see a period of five hours or more, eight hours or more. I rarely see periods of much less than four or five consecutive hours triggering the right of first refusal. Probably the shortest time I’ve ever seen was a period of two hours, but that’s extremely uncommon. Just to give you a sense of where most couples land, overnights are very common.

Then there are couples where it’s just absolutely clear to them that under any and all circumstances, if a parent were going to be away from the kids for a block of four hours or more, absolutely they want a legal obligation that the other parent is given the opportunity to be with the kids during that time. If that makes sense for you and your co-parent, that’s wonderful. There’s no right answer there. It’s more about feeling out what’s practical for you and what feels comfortable for both co-parents.

Another detail that is often specified in the agreement is the amount of time that the non-scheduled parent has to respond. If you imagine you have the kids one weekend, you have to travel that weekend for work, two weeks out you find this out, you notify the other parent and then you don’t hear from them. How long does the other parent have to let you know before you’re allowed to put childcare in place? Because you also need time to get that in place. That’s something that really varies, I would say, across families and across individuals. It’s just something you might want to clarify as part of your negotiation to figure out, “Okay, once I’ve let you know that I’m not available, how long do you have to get back to me as to whether or not you want to have the kids during that time before I can move forward with scheduling childcare?”

That was our mini-episode on the right of first refusal. I hope it was helpful for you.In this episode, I want to talk about something called the right of first refusal, which is a clause that is in almost every agreement in the parenting section. Let me just start by first explaining what is the right of first refusal. The right of first refusal is the right of the parent who is not scheduled to be with the kids at a certain time on a certain day to be with the kids if the other parent, the scheduled parent, can’t be with them. It’s the right to be with the kids, to have preference ahead of any childcare provider or relative of the scheduled parent, ahead of anyone else, essentially. Put another way, if you are scheduled to be with your kids, to have them overnight on a given Wednesday night, but as a result of a work trip you have to take, you cannot be with the kids. You won’t even be at home overnight. You’ll be traveling Wednesday through Thursday. You can’t be with the kids. You must give the other parent, your co-parent, the first opportunity to be with the kids instead of you before you arrange childcare to cover for you on that night.

I would say that almost all, potentially all couples will agree to include this clause in their agreement because everybody would like the chance to be with their kids if the other parent is not going to be with them. I say the chance or the opportunity to be with their kids intentionally because what the right of first refusal is not is an obligation that the non-scheduled parent will take the kids if the scheduled parent is not available. So this is not about the other parent providing childcare if you have to work late and can’t pick up the kids, or you have to, again, travel for work, or maybe you have a family matter that you have to attend to with family out of state that you have to go to last minute, and it’s your weekend with the kids and you have to travel but you don’t want to take the kids with you. In all of those circumstances, it is the obligation of the scheduled parent to figure out coverage or childcare for the kids if they’re not available, and it is not the obligation of the non-scheduled parent to provide that childcare. What the right of first refusal grants is the opportunity to that non-scheduled parent to have the kids be with them if they want that, if they’re available, and if they’re willing.

It often also will speak to, in the right of first refusal clause, what amount of time away from the kids triggers the right of first refusal. Let me just concretize that with an example. You may choose to say that if either parent is going to be away from the kids overnight or longer, the right of first refusal kicks in, meaning they have to notify the other parent, give them the opportunity, not obligation, to be with the kids during that time. If the other parent is not available or not willing or not interested in being with the kids during that time, the traveling or scheduled parent has to come up with childcare. In that example, the triggering amount of time is an overnight. So an overnight or longer away from the kids triggers the right of first refusal. At the other end of the spectrum might be a trigger time of three or four hours away from the kids that if you were scheduled to be with the kids, and you had to, for work, personal, family, whatever reasons, you had to be away from them for four hours, you would be legally obligated to let the other parent know, to see if they wanted to be with the kids during that time, and if not, then and only then, to arrange childcare.

I want to make a distinction here which is important. It may very much be your intention that if you need to be away from the kids during, say, your weekend time with them for a period of three hours, you may think, “Well, obviously, I would let my co-parent know and if they wanted to be with the kids during that time, great.” You are always free to do that. You’re free to contact your co-parent if you’re going to be away from the kids for five minutes or 30 minutes or any amount of time. What goes in your agreement is the minimum amount of time that creates a legal obligation in every circumstance to notify your co-parent and give them a chance to be with the kids.

If you choose to say, let’s say that eight hours is the trigger for the right of first refusal, if the scheduled parent is going to be away from the kids for a period of eight hours or longer during their scheduled time they will notify their co-parent, give the co-parent the opportunity to be with the kids during that time, and then come up with childcare if the co-parent is not available. Now, you could have that in your agreement, and then if you’re going to be away from the kids for a period of three hours or four hours or five hours, all of which are shorter than eight hours, you can still notify your co-parent. Give them the opportunity. If they’re not available, then you come up with childcare. So, what you’re going for in the agreement is just the minimum amount of time that should create a legal obligation for the scheduled parent to notify the other parent and give them the opportunity to be with the kids. You want to think about it in this way rather than, in practice, what’s the smallest amount of time that would cause you to reach out to your co-parent because that might be a shorter amount of time. When you think about it in terms of, “Okay, but what amount of time should create a legal obligation to notify the other parent?” that may be a longer amount of time. So, you want to give some thought to that, and that should be specified in your agreement.

Another consideration that you want to keep in mind is just something to consider as you try to figure out what’s the right amount of time to trigger this right of first refusal. I think for many parents, they think, “Well, any amount of time because if I’m the non-scheduled parent, I would always want to be with my kids if I’m available. So I always want the other parent to have to let me know. If they’re not going to be with the kids during their time, I want the chance to be with the kids.” That makes a lot of sense, but you also want to consider that, for instance, depending on the ages of your kids, you might leave them alone for 30 minutes to go to the store. Technically, if you had no minimum time away from the kids to trigger the right of first refusal, that 30-minute period would trigger the right of first refusal.

When you get into shorter periods of time that trigger the right of first refusal, meaning that trigger the requirement on the scheduled parent to notify the non-scheduled parent that (a) they’re going to be away from the kids for this day or this amount of time, and (b) to offer them the chance to be with the kids, bear in mind that that also has you communicating a lot more the shorter the time period with your co-parent about your day to day schedules. “I’m going to IKEA for three hours. Do you want to take the kids?” “I have a soccer game and I’ll be away for two hours. Do you want to take the kids?” That creates a legal requirement for a lot more and more regular contact about your day to day schedule, which is something that both of you may not be as interested in. You want to balance how much micro-communication you want to have about day to day, hour to hour changes in your schedule or details of your schedule when you’re with the kids versus how much you obviously, as a parent, want to be with your kids if they’re not going to be with the other parent.

To give you a sense, I would say the most common trigger amount of time that I see for the right of first refusal in agreements is an overnight. I think for a lot of couples who have that in their agreement, they fully expect that for shorter periods of time, maybe they’re away from the kids for five hours or eight hours, they actually are going to be in communication with the other parent about whether the other parent wants to take the kids, but they don’t want to create a legal obligation to do that. Overnight is probably the most common amount of trigger time for the right of first refusal, but I also do see a period of five hours or more, eight hours or more. I rarely see periods of much less than four or five consecutive hours triggering the right of first refusal. Probably the shortest time I’ve ever seen was a period of two hours, but that’s extremely uncommon. Just to give you a sense of where most couples land, overnights are very common.

Then there are couples where it’s just absolutely clear to them that under any and all circumstances, if a parent were going to be away from the kids for a block of four hours or more, absolutely they want a legal obligation that the other parent is given the opportunity to be with the kids during that time. If that makes sense for you and your co-parent, that’s wonderful. There’s no right answer there. It’s more about feeling out what’s practical for you and what feels comfortable for both co-parents.

Another detail that is often specified in the agreement is the amount of time that the non-scheduled parent has to respond. If you imagine you have the kids one weekend, you have to travel that weekend for work, two weeks out you find this out, you notify the other parent and then you don’t hear from them. How long does the other parent have to let you know before you’re allowed to put childcare in place? Because you also need time to get that in place. That’s something that really varies, I would say, across families and across individuals. It’s just something you might want to clarify as part of your negotiation to figure out, “Okay, once I’ve let you know that I’m not available, how long do you have to get back to me as to whether or not you want to have the kids during that time before I can move forward with scheduling childcare?”

That was our mini-episode on the right of first refusal. I hope it was helpful for you.

 

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