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).
In some States, the Right Of First Refusal is considered to be implicit in the custody decree, even though it may not be explicitly written out. Most Family Court judges acknowledge the concept and worth of Right Of First Refusal clauses and rarely, if ever, object to such a provision being included in the parenting plan because it affords the potential for parents to work together in raising the children. Paradoxically however, judges will rarely enforce violations of Right Of First Refusal, leaving it up to the custodial parent's discretion. Many judges consider Right Of First Refusal issues to be too minor in importance to warrant a hearing in court.
Obviously, exercising the Right Of First Refusal is only practical when the parents live in close geographic proximity to one another. Exercising the Right Of First Refusal is impractical (if not impossible) where substantial distances are involved because of issues related to timing and notification. If parents live more than about an hour of travel-time away from each other, exercising Right Of First Refusal starts to become difficult to implement in a practical sense.
Understandably, exercising the Right Of First Refusal also depends strongly upon collaboration between the parents. When exercised properly, Right Of First Refusal can increase cooperation and trust between divorced or separated parents, allowing them to depend upon one another in the same way as they would if they were still in a cooperative marriage. This cooperation is also extremely beneficial to the child because it allows the child to see the parents working together in a positive way, as well as increasing the overall time the child spends with each parent.
If exercising Right Of First Refusal would be practical to do in your situation, we strongly suggest that you have it explicitly written into your custody order and/or parenting plan. (We recommend including a Right Of First Refusal provision in your parenting plan by default, in case circumstances change, which they frequently do.)