Can A Stepparent Block A Right of First Refusal Clause?

Question:Kevin Mammola Atlanta Divorce Attorney

Per our child custody agreements, I share joint legal custody with my ex-wife though she has primary physical child custody.

She has been hospitalized for weeks about 3 hours from where I live. Her husband – my child’s stepfather – is refusing to let me come take my child so that he can live with me while his mother is recovering in the hospital.

Can my child be kept away from me by his stepdad because it’s technically not my parenting time even though the mother is in the hospital unable to care for the child?


While I am not licensed to practice in your jurisdiction, I can provide you with some general divorce help for men regarding the child support issues you present in your question.

Your initial approach is for you to carefully review the terms of the order pertaining to child custody and visitation of your child. Carefully review the order to determine whether there is a provision containing what is often referred to as a “right of first refusal.”

A right of first refusal typically provides that if a party is required to use child care, baby sitter, etc. for a stated period of time (e.g., 4 hours or more), then the parent entitled to have parenting time with the child at that time is required to contact the other party to ask them to care for the child during that period of time.

If your order contains such a provision, and the mother is refusing to allow you to care for the children while she in the hospital for an extended period of time, then she would be in violation of the order.

In the event the child custody agreements contain no provision regarding a right of first refusal, then you should carefully review the document to determine whether there is any language pertaining to a situation such as the one in which you are presently faced (e.g., what happens if one parent cannot care for the children due to a medical emergency?).

If your order provides you with no clear direction as to what either party is or is not authorized to do under these facts, provided that the order grants you joint legal custody and certain rights to physical custody of the child, then it is safe to presume that you have superior parental rights over the child’s stepfather.

As a last resort, if the mother is in the hospital and the stepfather refuses to relinquish custody of your child, then you may want to consider traveling to meet the stepfather and your child and contact the police when you are a short distance away, asking them for assistance in enforcing the terms of a civil court order.

Ensure that you bring your driver’s license with you and a certified copy of the custody order.

Before doing this, it is highly recommended that you take a copy of your order to an attorney so that he or she can review the entire order and provide you with legal guidance based on a more complete review of the language pertaining to child custody and visitation.


To schedule an appointment with a Cordell & Cordell mens divorce lawyer, including Kevin Mammola, an attorney in the Atlanta, Georgia office of Cordell & Cordell, please contact Cordell & Cordell.

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One comment on “Can A Stepparent Block A Right of First Refusal Clause?

    We have a right of refusal of 4 hours. My parenting time ended at 9 pm, I departed for work earlier that evening at 7 pm. Our son remained with my parents and was dropped off accordingly at 9 pm. Does the right of refusal apply since my parenting time ended prior less than the 4 hour requirement?

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