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Right of First Refusal

The “Right Of First Refusal” is a provision frequently written into custody orders and parenting plans. The intent of a Right Of First Refusal provision is to maximize the time child spends with both parents (especially the non-custodial parent, whose time is normally limited to begin with).

In its most basic form, Right Of First Refusal means that before either parent can use the services of a baby-sitter or other third-party caregiver, the other parent must be given the opportunity to care for the child during that time. The kind of situations where Right Of First Refusal typically apply are both “spur of the moment” occurrences (your car breaks down and you’re unable to pick up the child at school), as well as situations that are planned in advance (for example, job interviews, doctors’ appointments, or night classes).

Depending upon your State of residence, provisions in your parenting plan, and the prevailing legal practices, Right Of First Refusal may or may not extend to such things as preschool, day-care, or before- and after-school care. In some cases it may be interpreted to mean that when the child is sick, the other parent has the opportunity to care for the child (assuming the child is to be kept out of school).

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