Tuesday, January 9, 2018
THE RIGHT OF FIRST REFUSAL-
WHAT IS THAT?
Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017-2018
In devising a divorce or child custody settlement agreement in which parenting time is set out, there is frequently reference made to the “right of first refusal” (RFR). Typically, that means that when one parent is not available to care for the child during their own parenting time, the other parent must first be contacted and given the option to care for the child before anyone else (e.g. babysitters, family, etc.). When a parent is faced with that scenario, however, it is not that difficult to sabotage that provision. For example, with young children who will probably not understand the schedule requirements, a parent could bypass the other by having a grandparent or babysitter spend a few hours babysitting, hoping that the other parent won’t find out. When the other parent does discover the breach of this provision, however, typical excuses include:
-“I tried to reach you but you didn’t pick up, the voice mail didn’t work, etc.”
-“I was just going out for an hour and something unexpected delayed me”;
-“The child begged to go next door to the neighbor’s for a few hours while I
went to work and there was no school that day, etc.”
-“The child begged to go to grandma’s for a few hours, what’s the harm?”
-“The day care center is an exception to your right of first refusal; it is like
school, or an extension of me, or part of my parenting style, etc.”
These are but a few examples, and each family has its own nuances and scenarios. In any event, however, it is probably easier to violate this provision than to strictly comply with it, especially when the terms are not carefully spelled out. To comply with this requirement, good faith communication is essential. This is most difficult when the two parties cannot communicate, cooperate, co-parent or hide their disdain for the other. Sometimes the parent with the child feels like they are losing something by giving the child over to the other parent, even for an afternoon. Heaven forbid that the other parent should get five minutes extra with the child. It feels like a defeat. This sounds irrational because it is. But it is common.
The parent receiving the child may also be contributing to some of the bad attitude that pervades their relationship. Being smug, condescending or acting like they won and the other parent lost, can lead to a subsequent sabotage of the right of first refusal. In short, what goes around, comes around, because co-parenting is a reciprocal process that demands civility, cooperation, fairness and good faith. Without the belief (by both parents) that they are both essential for the child’s well-being, it is easy to marginalize, exclude, demean or sabotage the other parent’s time with the child, or that parent’s relationship with the child altogether.
In drafting a child custody or parenting time agreement, a right of first refusal clause may have a better chance of actually working if the conditions are set forth in such a way as to make it easier to comply with. For example, the right of first refusal could kick in only if a parent is unavailable for an entire day (e.g. more than 8 hours), or for a day that involves an overnight. So, if one parent has to go on a business trip overnight, rather than to have the child stay at Grandma’s, the child would stay at the other parent’s residence if that parent opted-in for that night. Not being available on a daily basis due to one of the parents working, could be addressed either by the other (if non-working) parent having the option to care for the child under this provision, or by both parents agreeing to use day care. If the child is in day care, however, and is quite young, an agreement should spell out the rights of the other parent (who does not have parenting time that day) to take the child out of the day care (e.g. to go shopping or to the doctor, to the beach, etc., with that child). Again, it is possible that the working parent who is unavailable would rather have the child in day care than to be with the other parent (who would benefit [to the chagrin of the non-benefitting parent who feels like they lost something]). The issue can be specified in much detail in the agreement to minimize ambiguity and to clearly define the parameters of the right of first refusal, among numerous other things. It does work both ways and it helps to clearly define the terms.
Situations such as those described above are a few examples of how some parents (not all) put their own emotional needs above those of their children, and throw fairness, good faith, cooperation, co-parenting, etc. out of the window. Residual hatred, anger, and resentment can distort a person’s judgment and drive that person’s decision-making. This negativity contributes to the narcissistic tunnel vision that fuels Family Court litigation. It precludes reasonable, flexible, good-faith co-parenting, it causes anxiety and other behavioral problems in children, and costs tons of money in legal bills. In drafting a parenting time agreement, all of this should be taken into account, realistically anticipated to the extent possible, so as to minimize ambiguity and the confusion and anger that can ensue later on after the agreement is signed and in force.
The right of first refusal recognizes that in child care, both parents (if fit and capable) should take priority over all others. It requires the two parents to deal with each other cooperatively, flexibly, civilly and in good faith for the best interests of their child. This presents for some, a crucial challenge for those who could not cooperate or be civil to each other when they were previously living together. But here, the stakes are great, it is not about them, and their emotional needs should take a back seat to the best interests of their child. It is possible (and necessary) to compartmentalize one’s feelings in this regard, to cubby-hole the resentment and anger and keep them separate from the reality that the child needs two parents.
Good luck, and please post a comment about your experiences.
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Please note: Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ. He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has, in addition to providing general psychological services, performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division. No special skills or, expertise in either profession is implied by any reference to my being licensed as a Psychologist as well as being a licensed attorney. The two professions are distinct and separate, with differing training and education, and they each have their respective licensing, rules of ethics and codes of professional responsibility. Contracting with Jonathan Gordon in one profession precludes ever engaging his services in the other profession due to conflict of interest. This web site and blog are solely for general informational purposes and should not be construed otherwise and should also not be taken as tax advice (for which you must consult a C.P.A.). A professional relationship is not established until a retainer agreement is signed for legal services or if a consent for treatment agreement is signed for psychological services.
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