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What is a Right of First Refusal in a Parenting Plan?

When negotiating parenting arrangements, one parent will often demand a provision in the parenting plan that provides for a “right of first refusal.” Such a provision usually requires the parent exercising parenting time to notify the other parent first before calling a baby sitter. The courts have now seemed to approve the use of such provisions based on an amendment to the child custody laws.

In 2011, the Tennessee Legislature passed a law requiring the courts to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the [best interest of the child].” It makes since that if one parent is unable to care for the child during his or her parenting time, the other parent should be given an opportunity to do so before a baby sitter is used. Such an arrangement will “permit both parents to enjoy the maximum participation possible in the life of the child. . . .”

Care should be used, however, when drafting a right of first refusal. Factors to be considered are things such as a minimum amount of time before the right kicks in. If the parent exercising parenting time needs to run to the grocery store and asks a neighbor to keep the child for an hour or so, it would be impracticable to apply the right of first refusal. Also, a set period of time should be provided for giving notice to the other parent of the option to exercise the right. Likewise, the parent with the option should be required to let the other parent know within a reasonable time whether or not the option will be exercised.

The following is an example of an actual right of first refusal in a permanent parenting plan order approved by the court: “If either parent is unable to spend time with the child during that parents parenting

time and would otherwise be forced to utilize a third party to stay with the child, the other parent shall have the option to spend that time with the child. The parent who is scheduled to have parenting time shall give the other parent at least four (4) hours’ notice of the inability of that parent to spend time with the child and the other parent shall either accept or reject the opportunity to spent that time with the children at least two (2) hours following the notice.”

Rights of first refusal are generally a good idea as long as there are limits in place. It is best to work out a general agreement with the other parent and then have a qualified family law attorney draft the actual agreement.

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