Right of First Refusal Clause If Child Care Is Not Required

Question:

This is the exact reading of my child custody agreement with my children’s mother.

“Plaintiff and Defendant shall each have first right of refusal regarding childcare for the minor children if care is needed for one hour or more and such shall take priority over a boyfriend/girlfriend or future spouse providing care for any of the minor children.”

So am I required under the first right of refusal provision to give the children to my ex-wife in the event that I have the ability to be with my children, but one of them attends a birthday party or activity with a relative like going to the park if I will not be there?

It is my understanding that it applies only in cases where I would need child care, not for them to be able to do something with a friend or family member.

Answer:

I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Nebraska and Iowa divorce laws where I am licensed to practice.

The issue here is, you do not “require” child care, based on the facts you have provided, so it is unclear if the court would find you in contempt of the court order. This is not “child care” but rather an activity with family/friends. Just as a birthday party invite is not a “daycare” arrangement, it can also hold true for daily activities.

Although your ex-spouse may prefer the contempt route, another option is a modification of your current divorce decree. You will need to check with a local divorce lawyer, but it has been my experience in my jurisdictions that parties can seek to modify their current custodial orders based on a material change of circumstances.

For instance, under your limited set of facts, a divorce attorney might ask the court to grant the client the right to not follow right of first refusal during these periods or to clarify the order as ambiguous and confusing.

This is the best option if you want a long-term change or do not want to risk being pulled into court on a possible contempt charge, no matter how frivolous.

Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Omaha, Nebraska Divorce Lawyer Jamie Kinkaid, contact Cordell & Cordell.