The Right of First Refusal

The “Right of First Refusal” is a concept originating from contract law that grants the holder of the right the option to enter into a business transaction with the owner of something before the owner may enter into a transaction with a third party.  Put more simply; before you can sell your widget to a third party, you must ask whether I want to buy the widget.  So why are we blogging about a contractual right on a family law blog?

The answer is, because the right of first refusal comes up all the time when negotiating child custody orders.   The right of first refusal in a family law case is a court-ordered right between the parents, that provides “Parent A” the option to care for a child during “Parent B’s” designated time, when “Parent A” is otherwise unavailable.  This means the child is in the care of their own parent instead of placing that child into the care of a third-party provider. It also avoids paying for the cost of the third-party care provider; a cost typically paid by both parents equally.

The theory behind the right of first refusal is that each parent’s time with their child is more important than that child’s time spent with a third party.  It is in line with the current tenure of the California Family Courts for “equal time sharing arrangements” that promote frequent and continuing contact with both parents.

The following is an example of a typical order granting the parents a right of first refusal:

“If either parent will be unavailable to the children for more than 12 hours or overnight, that parent shall notify the other parent 24 hours in advance and provide the other parent with the opportunity to care for the children during the period of time that the custodial parent will be unavailable.  If the other parent is not available or cannot exercise this right of first refusal, the custodial parent shall be responsible for arranging for the necessary child care for the child.”

The main issue (in bold above) is how long to make the period of time before the right of first refusal is triggered.  So, how many hours should be included in your right of first refusal?  There is no perfect timeframe since the answer will depend on your individual family.  We have drafted orders where the time period was as short as 4 hours and as long 18 hours.  It is a good idea to include, at a minimum, any period of time when a parent will not be available to care for the children overnight.

One thing to consider, especially in families where only one parent works full time, is to avoid making the time period less than 8-10 hours. Otherwise, you run the risk of the non-working parent exercising their right of first refusal during every work day.  Not only does this deprive the working parent of time with the children, but it is contrary to California’s public policy of promoting frequent and continuing contact with both parents.

Every case is unique and every family is different, but we often suggest the time period be between 10 -12 hours or overnight.  What is important is that your right of first refusal fits your family and your family’s needs.  This could include special exceptions for military service, work related activities/travel, differences for weekday or weekend absences, or options to include grandparents or step-parents to provide care.

No matter what the needs of your family may be, the attorneys at Bickford Blado & Botros have the knowledge and experience to draft a detailed and tailored right of first refusal in your case.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding the right of first refusal. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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