Is a Right of First Refusal a Good or Bad Idea in Child Custody Cases?

A right of first refusal is a court order that does not allow one parent to place the child in the care of another person without first giving the other parent the first right to care for the child.

We call it a right of first refusal because the other parent has the first right to refuse (or accept) the childcare responsibilities.

That "other person" may mean anyone. It can be a daycare provider, a family member, a friend, a babysitter, etc.

The different types of first refusal rights are as follows:

1. A right of first refusal to care for the child if the child will be away from the custodial parent for a certain number of hours.
   
2. A right of first refusal to care for the child if the child will be away from the custodial parent for an overnight.
   
3. A first refusal right that does not focus on the number of hours but instead the person who cares for the child.
   

Formal daycare is one example of the third situation. A parent may argue before a child goes into daycare, they want the opportunity to care for the child during that same time, regardless of how long that may be.

The first two are the most common.

Most of the time, a parent wants a right of first refusal because they don't want a stranger or someone other than them to care for the child.

Yes, parents can agree on the right of first refusal in their custody stipulation (which means agreement), which can become a court order.

If one parent wants a right of first refusal and the other does not, the first parent has a choice to make. Does that parent who wants it have the facts and evidence to persuade the court that a right of first refusal is consistent with the child or children's best interest.

In our opinion, there is usually not a good argument for a right of first refusal that does not involve overnight visitation. Even then, the right of first refusal should not be for every overnight visitation. For example, does the first refusal right make sense if a child is having a sleepover with friends?

If you intend to argue for right of first refusal, be reasonable. Here are examples where it may be reasonable.

1. A right of first refusal that triggers if there are more than a certain number of overnights per year.
   
2. A right of first refusal that triggers for any overnight where the child will not be with family, friends or certain designated people.
   
3. A right of first refusal that triggers if there are two or more overnights away from the parent with custody but not certain events such as a camp, sleepover with friends, etc.
   

We understand some parents cannot handle extended parenting time but still request it to lower their child support obligation. This is especially true in those situations where a parent demands having a 50/50 custody schedule but, in reality, cannot handle anything near that.

A first refusal right can rein in a parent like that, so a child or children are not spending significant parenting time cared for by family, friends, or daycare providers. For those situations, the first refusal right makes sense. Rarely is that a situation that does not regularly involve overnight visitation or multiple overnights.

Some parents request a right of first refusal for any time away from the other parent or non-overnight time away. With some exceptions, that is usually not reasonable.

Parents who want this often argue for it because the other parent works during the day (Monday through Friday) and does not want the child in childcare. That should be a failing argument based on California law.

We will quote from the case of Marriage of Loyd. That was a case where the trial court gave more time to the mother because she did not work and denied that time to the father because the child would be in childcare during regular work hours. The appellate court stated to the trial court its ruling was not proper. Here is a quote.

"The trial court in the present case based its decision upon the fact that Bryan would place his children in day care while he worked. The trial court assumed, without any supporting evidence, that the mother could provide better care for the children because she was in the position of being able to remain in the home with the children during the day. The investigator's report, upon which the trial court heavily relied, opined that both parents were adequate providers, but that the "children should be in the care of a parent whenever possible." It is interesting to note that the investigator who made this recommendation also recommended that the parents consider allowing H.L. to continue his day care arrangement, as it encompassed a preschool component. No specific evidence was presented at the hearing demonstrating that Bryan's work schedule had any negative impact on the best interests of the children."

The best way to argue against a right of first refusal is to show how it is not consistent with a child's best interest but rather the other parent's unhealthy attachment to the child or children being away from that parent. That is what first refusal rights sometimes are - not a concern for the child's best interest but the requesting parent's anxiety resulting from being away from the child.

A request for this right may come from a subjective belief that is genuine. But just because the parent subjectively feels the way they do does not mean it is objectively reasonable or consistent with how California family courts view such requests.

Judges are human beings, and you will get different perspectives on the right of first refusal. Our experience with the family law judges we come across (as well as the general judicial attitude) is they do not favor rights of first refusal.

We have heard family law judges state a right of first refusal is a way to create or increase conflict between parents. Judges want to reduce conflict and keep it amicable between parents. They do not want parents back in court if it is avoidable. Rights of first refusal may invite conflict by limiting the freedom parents have to care for the child or delegate that childcare for reasonable times.

The best way to remove a right of first refusal is to file a request for order with the court and ask for the modification of that provision. The situation assumes negotiations with the other parent fell apart.

This request for order should explain to the court why the right of first refusal is working against the child or children's best interest. If the other parent who wants the right is using it to create conflict, you should give the court compelling examples of those facts.