Happy father playing with his son and smiling

Perhaps no area of family law is as emotionally overly burdened as that
of child custody and visitation. Every parent wants what is best for the
children, and that usually means having a visitation plan that provides
for the child to spend as much time with each of the parents as possible.
One way to achieve this goal is to include the “” in your custody order.

The right of first refusal is a fairly common clause that can be included
in a final order. This clause will provide that in the event the parent
exercising visitation cannot look after the child for whatever reason
(work, errands, medical procedure, etc.), then he or she must first offer
the other parent the opportunity to watch the child before contacting
another relative or babysitter. The idea behind this is that it is in
the child’s best interest to have as much time as possible with
the parents, and that bonding with the parents is more important that
bonding with other relatives or non-relatives. It is common for a right
of first refusal to have a time element involved. For example, it may
read that the parent exercising visitation is only required to offer the
other parent the opportunity to watch the child if the exercising parent
will be unable to watch the child for three hours or more. This type of
time element is important because without it, a strict reading of the
right of first refusal would mean that any time a parent is going to leave
the house for any reason even if it is for a short amount of time, the
parent would be required to offer the other parent the right to watch
the child. This would be impractical.

Before deciding if the right of first refusal would work well in your case,
there are several factors to consider. First, how well do you work with
the other parent? If you have a highly contentious case or difficulty
effectively communicating with the other parent, these are important issues
to consider before including a right of first refusal clause. Distance
from the other parent can also be an element. If you live half a mile
away, that would make such a clause quite workable, whereas if you have
an hour drive to get to the other parent’s house, the actual use
of the clause could become more problematic. In short, although the idea
of allowing the child maximum time with both parents is a good one, the
use of the right of first refusal may not always be right for every situation.

The right of first refusal can be a good compromise in some cases, allowing
the parties to maximize the time the parents spend with the children.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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