The Right Of First Refusal In An Arizona Child Custody Case

It is inevitable that parents will occasionally need a babysitter or some other outside help to step in to give them a chance to catch up on personal matters, or simply to get a break. This can be even more true for single parents who are adjusting to a new lifestyle after divorce. In some situations, it could seem like a good idea to simply give the child to the other parent in these situations, and it might make sense to formalize this by including it in the parenting plan. But including a Right of Refusal, or ROFR, clause in your parenting plan can also lead to unique issues arising throughout your case. Our Arizona family law team can answer any questions you may have about a ROFR clause and assist you in obtaining child custody orders that are favorable to your situation. Schedule your free phone consultation with an experienced Phoenix and Tucson family law attorney today at 480-470-1504 for more.

What is the Right of First Refusal?

When a parenting plan includes right of first refusal, it means that a parent should give the child to the other parent whenever they are unavailable during their scheduled parenting time, as opposed to giving the child to a relative or babysitter. Your opinion on this type of clause in a parenting plan may depend on your experience with co-parenting relationships. For parents who get along well, this can help the parents save on childcare costs and give the child more quality time with their parents. But not every family law case is so low-conflict. Some parents abuse the right of first refusal and use it as a tool for manipulation, harassment, and control. That isn’t to say that every ROFR in a parenting plan is a bad thing. But the parents should be careful when crafting a legal document that will have so much control over the next several years of their lives. See below for more information about the risks of a poorly-constructed right of first refusal, which can be avoided with an experienced family law attorney.

Weaponization of the Right of First Refusal

What could be a positive way to promote quality time between a child and a parent can become a weapon in a high-conflict family law case. One or both parents could abuse the ROFR to create a toxic custody situation. Some examples of how this could occur include:

Sabotaging the other parent’s support system: Isolating a victim from their friends and family members has long been a technique of abusers. A parent might continue this type of behavior by making sure an ROFR is included in their parenting plan after divorce. Here, the parent might intercept all of a child’s time visiting with aunts and uncles, grandparents, etc., to reduce the bond that child feels with their other parent’s side of the family.
Spying and micromanaging: It can feel jarring to suddenly know nothing of what is going on in a former spouse’s life. But that doesn’t give a parent the excuse to use an ROFR to spy on their ex. What should just be a request to leave the child with that parent instead of a third party turns into a chance for an interrogation. But it isn’t that parent’s business to know where that parent is going or who they are going with just because they were offered the right of first refusal.
Travel burdens: Clearly, an ROFR works best when the parents live relatively close to each other. Otherwise, one parent may always make sure to exercise their right of first refusal to force their ex to travel based on the terms of their parenting plan. This can be inconvenient, time-consuming, and costly for that parent, but also harm the child by making them spend time traveling instead of doing schoolwork, playing sports, spending time with friends, etc.
The chance for frequent litigation: This type of harassment is common when one parent has far more resources than the other parent, or has legal connections that make it relatively easy for them to harass their ex through litigation. They will want to drag their ex to court for every minor infraction of the ROFR. They may want to deplete their ex’s resources, or gain an advantage in a request for more parenting time. But this isn’t just a burden on the parties and their children, but the court as well.

How to Word Your Right of First Refusal Clause

If you do choose to include an ROFR in your parenting plan, it’s important to word it carefully to make sure it serves its intended purpose. A poorly worded ROFR could cause confusion, or eventually be used as a weapon in the ways described above. If you want to avoid these pitfalls, be sure to have a high trigger threshold for the ROFR to kick in. This is how long the custodial parent must be unavailable to have to offer that time with the child to the other parent. Some ROFR clauses will trigger when the parent is gone for as little as 2 hours, or even for any amount of time at all. This creates too much opportunity for dispute and drama. Setting the threshold closer to 6 hours will prevent the ROFR from becoming a burden for minor errands.

Another common term in ROFR clauses is a grandparent exception. This concept is fairly self-explanatory- the ROFR doesn’t apply if a grandparent will be watching the child while the parent is busy. You can change out the grandparent for whoever is most relevant to your situation, such as a sibling or a cousin. Another important rule to include in your ROFR is a strict response window. This means that the parent only has a limited amount of time to respond to a ROFR request before the parent can turn to other sources of childcare. Setting a lower window, such as 1 or 2 hours, leaves less room for disputes. Finally, you may want to utilize a self-transportation rule to prevent ROFR abuse. This will cause the parent exercising their right of first refusal to think twice if the commute between the two parents is inconvenient.

Don’t Disadvantage Yourself in a Family Law Matter by Proceeding Self-Represented. Schedule Your Free Phone Consultation with a Trusted Arizona Custody Lawyer.

Including a Right of First Refusal in your parenting plan won’t come without risks. But if you value it highly, a skilled attorney can help you craft a custody agreement that won’t infringe upon your parental rights. Your attorney will also be familiarized with your case if issues ever arise later down the road. There is no better investment you can make than in your family’s future. But you can talk to an experienced lawyer from our firm to see if we’re the right fit for your case without any investment at all. Our Arizona custody lawyers offer free consultations by phone to get started. Receive valuable information about your case and a competitive quote for high-quality family law representation in Arizona. Set up your free consultation with My AZ Lawyers today at 480-470-1504.