Right of First Refusal: What Is it and how Does it Work?

The right of first refusal (sometimes called the “first right of refusal”) is a long name for a pretty simple concept, namely: parent care is better than non-parent care. Really, the right of first refusal means that if a parent cannot watch a child for more than a certain period of time, then the parent must offer care to the other parent.

So, say the right of first refusal period is four hours, and you’ll be at work for eight hours when you have your child, you would need to tell your ex and give him or her the opportunity to provide care of your child while you’re at work. Simple concept, but in reality it’s a bit more complicated. Let’s go over a few of the most common issues surrounding the right of first refusal.

Time period: A pretty standard time is three or four hours. Personally, I think this is way too short a period. Three hours means you have to contact the other parent every time you go to dinner or to a movie without your child. It’s just unrealistic. And it creates all sorts of conflict because people don’t offer time when they should, then the other parent finds out and gets upset, and then retaliates and refuses to tell the other parent when they’re gone. It’s a vicious cycle.

Transportation: Who provides travel for the right of first refusal? The parent who wants to exercise parent-time needs to provide transportation. This means if your ex calls and says she’ll be at work and you want to exercise parent-time, you will have to go pick up your child, then drop him or her off when your ex gets back from work. (This might be different if you specifically lay out all transportation in your Divorce Decree, but that usually isn’t the case.)

Step-parents: The right of first refusal refers to “parental care” and “surrogate care.” Parental care is presumed to be better than surrogate care (i.e., care by anyone that isn’t a parent), which is why you have to offer care to the other parent if you, as a parent, cannot provide it. This always brings up the question: can a step-parent provide parental care? Some judges differ on this, but the general answer is no. This means when you draft a right of first refusal clause, you need to specifically include step-parents as parental care.

(Sometimes parents want a boyfriend/girlfriend to be considered parental care. That’s stretching things a bit too much. Boyfriends and girlfriends almost never last very long, so they shouldn’t be considered parental care.)

Honestly, we don’t usually include the right of first refusal in divorces or paternity cases because it creates more problems than it solves. Most people don’t honor the right of first refusal if it’s only a few hours, which creates serious contention over time. In fact, the only time we really include these clauses is when there are concerns for the safety of our client’s child. And, usually, when we do include the right of first of refusal, we make it a longer period (e.g., eight hours or overnight). We have found when the period is longer, people honor it more and it creates less contention.

Hopefully, this has helped answer your questions and given you something to think about as you consider whether to include the right of first refusal in your Utah divorce or paternity case.

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