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What is the "right of first refusal," and do I want that in my Wisconsin divorce agreement?

What is the "right of first refusal," and do I want that in my Wisconsin divorce agreement?

When you share legal custody and physical placement of your kids, there can be unexpected issues. One situation that may come up for you and your ex is having a third-party watch your children. As a parent, you may want something called the right of first refusal when it comes to your children’s care. If you have never heard of this term, you may be wondering, what is the "right of first refusal," and do I want that in my Wisconsin divorce?

What is the Right of First Refusal?

Under the right of first refusal or ROFR, the placement parent must contact the other parent and offer them the opportunity to provide care when they can’t be with their children. If the non-placement parent cannot watch the kids, the placement parent can use another caregiver. This situation may arise in various situations, such as when the placement parent needs to go to a social or work event, or when kids need to be transported to and from school or other activities.

Defining the Right of First Refusal

The right of first refusal can be helpful to parents who want more time with their children or prefer not to use third-party caregivers. However, it’s important that both parties have the same expectations regarding its use. By clarifying your expectations beforehand, you and your ex may be able to avoid unnecessary conflict. Usually, the best way to establish how the ROFR will operate is by including defining language in your placement agreement.

Being Reasonable

Generally, ROFR becomes applicable when a placement parent is going to be away for at least four (often six) hours or overnight. However, the parties usually develop and agree upon the specific term details. Therefore, you and your ex can create ROFR conditions that fit your circumstances.

Adding parameters or other defining language may help you and your ex get on the same page about when the ROFR applies. That being said, it’s important to be realistic and reasonable as you develop a ROFR term. For instance, it may be unreasonable to expect a parent to call the other when they will only be away for an hour. Additionally, you should consider how much exercising this right may disrupt your children’s schedule, interfere with placement time, or implicate privacy concerns (does your ex really need to know every time you go on a date?).

Planning Ahead

Another issue to consider is that exercising the right of first refusal usually requires planning. If you know you need care on a certain date, you and your ex should consider coordinating beforehand. You may also be able to prepare for ongoing circumstances. For instance, if your kids need supervision from 3pm to 5pm Monday through Friday during the school year, you could offer your ex the opportunity to watch them during this time frame. You may also want to consider adding agreed language requiring each parent to provide the other with a certain amount of advance notice.

Communication Methods

One issue to consider regarding the right of refusal is how you will be communicating with the other parent. Right of first refusal works best when parents are cooperative and have an agreed form of communication. If you and your ex have an amicable relationship, texting or emailing about caregiving issues may work well. However, if there are communication barriers, the right of first refusal could become one more reason to argue, and best omitted from your agreement.

Consider Whether it Works for You

When it works for everyone involved, the right of first refusal can be an effective means for parents to have additional time with their kids and support one another. However, you may prefer to have your placement time to yourself or to have family members help with short-term child care. It may also be a source of potential conflict for parents who already have communication difficulties. If it doesn't seem practical or beneficial, you may want to consider leaving this term out of your placement agreement. Not having a ROFR doesn't mean you and your ex can't call one another for child care—it just means you don't have to.

Before agreeing to add the ROFR, it's important to consider how it may work for you and your circumstances. Further, if you decide to use this term, you will want to ensure that it includes the right clarifying language. If you are considering adding the ROFR to your placement agreement, you should review the matter with an experienced Wisconsin child custody and placement attorney. Your counsel can help you review your situation and create placement terms that support your relationship with your children.

Contact an Experienced Child Custody and Placement Attorney

Wisconsin Attorney and Mediator Karyn Youso of First Look Family Law is an attorney and Mediator with the experience you need to help you with your Wisconsin child custody and placement care. If you live in Metro Milwaukee, Waukesha, or Brookfield and have questions about representing yourself when your ex has an attorney, please contact us today and let us take a “first look” at your situation.