Is a Right of First Refusal a Good Idea to Include in a Marital Settlement Agreement?

Imagine that you have shared custody of your children with your ex. Your ex has the children when he or she is supposed to but, maybe because of a social engagement or a work obligation, he or she needs to find a babysitter.

Your ex calls a babysitter, or maybe even a family member to watch the kids for the night. Should your ex have called you? Do you have an automatic right to be the first one called to watch the children if temporary childcare is needed while the children are with your ex?

The Right of First Refusal

The answer is generally no. If the children are with your ex and babysitting is needed, your ex can use whoever he or she wants to watch the children (assuming that person is otherwise qualified to babysit, of course). There is no obligation to call you first, to give you the opportunity to see the kids, before calling third parties like sitters or family members.

That does not mean that you can not have that right — it just needs to be written into your marital settlement agreement, or awarded by the judge. This is called a right of first refusal. This term is common in all kinds of contracts.

The First Refusal clause generally requires you to confer with your ex and see if he or she is available to watch the kids before you use someone else to babysit.

Benefits and Negatives to First Refusals

Right of First Refusal clauses can be good because they can provide both parents unexpected, extra opportunities to be with the children (and no penalty if you can not be with the children if offered). Additionally, if you are concerned over who is watching your kids, you can at least be certain that you will have the chance to be the first babysitting option.

There are some drawbacks. This kind of arrangement certainly means more contact with your ex, so it is best for parents that have a healthy working relationship. It can also mean some lack of privacy because your ex is being contacted every time you need babysitting, he or she may know more about your schedule than you would like.

It can also hamper spontaneity. Getting a sitter quickly is more difficult because of the legal requirement to offer the babysitting to your ex first. If your ex does not live within a convenient driving distance, there can be transportation problems, as well, if your ex is offered babysitting and accepts it.

Whether you are in favor of the provision or not, you should give thought to it when drafting any marital settlement agreement or parenting plan.

Get legal help to assist you in understanding the terms of your divorce or marital settlement agreement. Contact Agnes Rybar LLC for help and guidance so you know what to expect in your family law case.