W. Tyler Moore, PC

Should you ask for the right of first refusal?

If your child's other parent has many work or social engagements and events to attend, you may wonder whether he or she will leave your child with a babysitter or family member frequently during his or her parenting time. The goal of a parenting schedule is to allow each of you the opportunity to develop a strong parent-child relationship, and neither of you can do this if your child is with someone else.

You may want to talk to your attorney about the pros and cons of a right of first refusal clause in your standard custody order.

Definition of the ROFR

In general, the clause states that any time the parent in possession of the child is going to be away from the child for a certain amount of time, the other parent has the option to keep the child. You and the other parent must work out the specifics. It is a good idea to carefully define the amount of time. You may want to opt for any period of over four hours, only during overnight visits or some other timeframe.

Benefits of a ROFR clause

The most obvious benefit is that your child spends more time with his or her parents, which has the potential to strengthen family bonds. If your child's other parent has your child more often than you do, getting the extra time may be very important to you. The ROFR may save money on childcare, as well.

Downsides to a ROFR clause

Your child's other parent may want to leave him or her with a grandparent or other extended family member, not only for babysitting purposes, but also to allow them the time to develop family relationships. While it may seem unfair to you, the time with grandparents may be important for your child's development. Strong bonds with grandparents provide benefits such as a sense of heritage and culture, and may also reduce the chances that your child suffers from depression later in life.

It may become difficult for both parents to make plans without the other getting involved. Unless you and your former spouse have a solid co-parenting relationship, including this clause could lead to conflict and interference with parenting.

Because this option is not in the Texas statutes, a judge may not allow it, even if you and your former spouse agree. If you are unable to work out your differences amicably and must resort to litigation, it is very unlikely a judge will consider it.

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