Pros and Cons of Right of First Refusal

Georgia courts require a written parenting plan before parents can get divorced. Good parenting plans act as a handbook on how to effectively co-parent the children. One controversial element of the parenting plan is whether there should be a right of first refusal provision. Right of first refusal allows the non-custodial parent (i.e. the parent who does not have parenting time) to exercise visitation with their child when the custodial parent is unable to exercise parenting time for a specified period of time. I get asked a lot about whether it is the right move to include a right of first refusal provision in a parenting plan. And like most legal questions, it depends. Sorry, lawyers are annoying that way!

When I include a right of first refusal provision in one of my parenting plans, I tend limit to limit the duration to when the custodial parent is away from the child overnight. Otherwise, a parent would be unable to go to a work function, go out on a date, etc. without triggering right of first refusal. I also limit the right of first refusal provision to third party caregivers outside of a blood relative, step-parent or a sleep-over with a friend.

Below are my top pros and cons for the right of first refusal provision.

PROS:

• It maximizes parenting time between the two parents and the minor child.

• Both parents can manage custody. This is helpful if one of the parents has a history of leaving the child with unreliable third parties.

• Neither parent will feel threatened or jealous of a third party caring for their child.

• If the parties live close-by, it can promote a healthy co-parenting dynamic.

• Parents can save money on childcare. Childcare is expensive y’all!

CONS:

• The non-custodial parent can police/control the custodial parent’s parenting time. Not everyone feels comfortable ceding their personal autonomy to make decisions on behalf of their chid.

• There is potential for conflict. If the custodial parent does not give the non-custodial the right of first refusal, the non-custodial parent can file a motion for contempt.

• The non-custodial parent is incentivized to question the child about who cared for him/her during the other parent’s parenting time. This is an unnecessary burden on a child.

• Young divorcing couples are likely to get remarried. That’s why I rarely limit a step-parent, step-siblings or half siblings opportunity to form a bond with the child. Otherwise, the right of first refusal provision can be used to alienate the child from extended family.

• Army parents may be deployed. It may not be in the child’s best interest to be cut off from the army parent’s family for an extended period of time.

  Lennon, Giovinazzo & Steele Family Law attorneys have the knowledge and experience to help with any family law issues. Contact us at 404.726.8501 or visit our website at www.lgsfamilylaw.com to schedule a Zoom or in-person consultation.