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Wisconsin Family Law Articles
Understanding the Right of First Refusal

Understanding the Right of First Refusal

When parents of minor children divorce, one of the most important and complex issues they will face is deciding how to divide placement time. Figuring out a schedule often requires them to strike a careful balance between wanting to be with their kids and doing what’s best for them.  Parents often have to accept seeing their children far less than they would prefer. One way a parent may be able to spend time with their kids outside of placement time is through the right of first refusal.

Wisconsin Placement Schedules

Placement time schedules are often negotiated rather than decided by the court and can vary widely from family to family. It’s common for divorced parents to have shared placement. This arrangement involves each parent having their kids at least 25% of the overnights. Time can be apportioned 60/40, 70/30, or in another manner that works for the parents and kids. Parents may also have a 50/50 placement where they share time equally. In some cases, families will have split placement of their children. Split placement occur when there are multiple children, but the placement schedule is different for each child.  Older children might be able to handle a more flexible placement schedule, while younger children (or special needs children) need a “home base” and primary placement with one parent.  There are all sorts of arrangements that work for different families.   

The Right of First Refusal

When devising how placement will work, parents can agree to include a right of first refusal in their parenting plan. This provision requires parents to contact each other first before calling a babysitter or other person to care for their kids during placement times when they are unavailable. The right of first refusal can help parents plan for caregiving in advance, or assist one another when last-minute situations arise. If the other parent declines, the placement parent can then make other arrangements with a third party caregiver. Right of first refusal can apply to after-school care and in any context where a placement parent may need a caregiver. Most often the right of first refusal is used when a parent’s absence will occur for a longer period of time, at least 4 or more hours of placement (often 6 or more hours), or overnights.  The idea behind the ROFR is that the other biological parent often wants to maximize their time with their kids, so if the placement parent is unavailable, this is another opportunity for the non-placement parent to see their kids, rather than bringing in a babysitter or other caregivers. 

When parents communicate well, the right of first refusal has the potential to engender a more cooperative and flexible parenting dynamic. It can also help parents support one another and their relationships with their children. However, when there is tension in the relationship or parents have communication barriers, this ROFR clause may be a source of conflict. Parents who already have a hard time communicating with one another may not convey information effectively, or honestly. Disgruntled exes may prefer to have grandparents stay with their children rather than engaging their former spouses.  Courts have moved away from requiring the ROFR, but will approve the clause if the parties agree on their own to put it into their agreements.

One way that parents can minimize conflict is to expressly state how they will be communicating about upcoming events. If text messaging and email are the preferred methods, parents could include this detail in their agreed-upon language. It will also help if they give one another as much notice as possible. If there is a concern about advance notice, parents could agree to notify one another of scheduled events a certain number of days or hours beforehand.

When used effectively, the right of first refusal can assist parents in ensuring that they communicate about their children's caregiving needs. This provision can also help parents have the opportunity to spend more time with their children.   However, it's essential to use the correct language when developing the clause. If custody and placement are at issue in your divorce, it's vital that you work with an experienced Wisconsin family law attorney. Your counsel can help you review your situation and create an agreement that supports your relationship with your children.

Attorney and Mediator Karyn Youso of First Look Family Law has extensive experience assisting clients during and after divorce and can help you determine your next steps. Please contact us to schedule a consultation.