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Drawbacks to the right of first refusal clause

If you have children and are going through a divorce, you probably understand the importance of having a well-drafted child custody agreement. After all, the agreement is likely to determine how both you and your ex-spouse parent your children. If you want to retain some control over who cares for your kids, you may want to consider adding a right of first refusal clause. 

Put simply, a right of first refusal clause requires a parent who cannot care for children during designated custodial time to offer the other parent the opportunity to care for them before hiring a sitter, asking family members or making other arrangements. While advantages of including a right of first refusal provisions in a custody agreement abound, some drawbacks exist. Here are four possible problems with this type of clause: 

1. Interpretation 

Even though right of first refusal clauses seem straightforward, there may be interpretation issues. For example, if you or your former spouse remarry, does a new partner receive an exemption from the provision? 

2. Alienation 

You want your children to grow into well-adjusted adults. Even though a right of first refusal clause allows you to maintain some control over your kids' interactions with others, you may inadvertently alienate them from family members and others. Even worse, alienation or failure to foster these important relationships may encourage your children's grandparents to pursue their own visitation rights

3. Arguments 

When used properly, right of first refusal clauses are best for all parties. For example, they allow one parent to travel occasionally without having to worry about finding childcare. However, if you or your ex chooses to weaponize a right of first refusal provision, you may find yourself in the middle of arguments you would rather avoid. Some parents find they are in the position of policing each other.

4. Planning 

Timing is important with right of first refusal clauses. If you or your former spouse have plans weeks in advance, rearranging access time probably is not a big deal. When plans change at the last minute or new conflicts suddenly arise, the right of first refusal provisions may become awkward. 

You should have considerable input into the language that goes into your child custody agreement, including a right of first refusal clause. However, it's important to consider its potential pitfalls before you write one into your agreement. Contact an experienced matrimonial family law attorney for help with your right of first refusal clause and position yourself--and your children--for your happily ever after.

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