Right of First Refusal and Overnights

By Samuel M. Sanchez

Attorney, Cordell & Cordell

School is out for summer (or about to be) and the issue of right of first refusal crops up often over summer breaks and the inevitable children sleepovers and backyard campouts.

Some couples have a clause in their divorce decree stating if one parent is going to be away for X amount of time during their scheduled parenting time, the other parent must be given first right of refusal to watch the child. But what about sleepovers?

If your son is with you over the weekend and wants to go to a sleepover at his buddy’s house, do you have to give the other parent first right of refusal since he won’t be staying with you that night?

First, a right of first refusal typically applies to care, custody and control of a child in the possession of a managing conservator or parent during a time period where possession is relinquished to a third party for care, custody or control for the purpose of supervision and management.

In the instance referenced, most judges would be hard-pressed to believe that allowing a child to attend a sleepover at a friend’s home would constitute sufficient grounds as to violate most typical rights of first refusal.  A typical scenario that fits a right of first refusal would be related to a parent or conservator having to work during a period of possession with the child.  If the shift or work period required that the parent place the child in daycare or in the care of a third party for longer than the period called for in the Final Decree of Divorce, then the parent or conservator would be obligated to contact the other parent or conservator and give them the option of having possession of the child during that time until the first parent could return to retrieve the child back into his/her possession.

The right of first refusal is not a bar to allowing children to be away from a parent in an instance such as a sleepover, however, depending on the language used in the Final Decree of Divorce, you may have such a duty if the decree was poorly or inaccurately drafted.  In the end, the actual language of the Decree will control as to whether or not your former spouse will be able to take you back to court to enforce any contempt action for nonperformance on your part.

If you’re in the similar aforementioned situation, I would suggest contacting an attorney so that they can review the specific language of the decree so as to provide you with a specific answer.

 

Samuel M. Sanchez an Associate Attorney in the Fort Worth, Texas, office of Cordell & Cordell P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Sanchez is licensed in the state of Texas where he is a certified mediator, interview/interrogation specialist, and is appointed by Gov. Perry to the Board of Regents for Midwestern University. 

Mr. Sanchez received his Bachelor of Arts from Texas Tech University, and received his Juris Doctor from Wesleyan Law School in Fort Worth, Texas.