When Right Of First Refusal Causes More Problems Than It Prevents

divorce lawyer Andrew LaufersQuestion:

I am strongly considering discontinuing practicing right of first refusal because of how difficult and contentious our regular parenting time negotiations can get.

My ex always wants to move her parenting time and set up a type of parenting time trade that would wind up being inconvenient to me. We do not have an official right of first refusal clause in our custody order, but we’ve always tried to make it work.

It’s becoming so frustrating that I feel all I can do is abide by the court ordered schedule and not involve a right of first refusal option.

Am I wrong on this?


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

Generally, in the case of conflict or disagreement your only obligation is to follow the parenting time schedule laid out in the court order. You are not required to accommodate your ex when she wants to move the time.

In high-conflict cases right of first refusal can be very problematic. I personally do not like to use these clauses if the parents have difficulty managing a schedule since it invites more conflict, but every divorce lawyer is different.

Additionally, a right of first refusal usually only works if both parents are able to cooperate. If this does not occur, then these clauses usually cause resentment; you find that you have arguments about who owes whom parenting time.

Because of these issues, I suggest in high-conflict cases the parties follow a detailed and exact parenting time schedule. This minimizes conflict and promotes certainty for your child.

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 Minnesota Divorce Lawyer Andrew J. Laufers, contact Cordell & Cordell.

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5 comments on “When Right Of First Refusal Causes More Problems Than It Prevents

    RFR can work; but only if a judge is willing to define the parameters and enforce the court order. And that is a problem with all forms of visitation: the routine failure of judges to enforce orders.

    high conflict divorce and first right of refusal
    I have had the opportunity to see First Right of Refusal (FRR) work in a high contentious divorce on a few occasions and the key to ensuring it’s success is to also include an alternative dispute mechanism. If two warring parents don’t have an alternative mechanism to address conflict, it can be very difficult to ensure a working FRR. A few ground rules that usually help. First, FRR should not be forced on the recipient. It’s a right of refusal, so if the other parent can’t watch the children during a certain time, then that parent has the right to refuse. Second, it helps that there be a minimum time frame to make said requests with exceptions being limited to emergencies. That way the other parent has the opportunity to schedule around the changes, 24 hours is usually safe enough for short periods, a week for longer ones. Third, in cases where the Custodial Parent (CP) will be leaving children with the Non-Custodial Parent (NCP) providing clothing for longer stays is a good idea. Fourth, “make-up time” becomes a headache and really shouldn’t be used for short times. If times are longer in nature then it should be considered on a case by case basis that both parties can agree on. This helps elevate the issues that the writer addressed and still makes FRR possible.

    I find Laufers’ response realistic. I’ve read the final IL ACT that was just signed by our governor, and just like everything else regarding custody and visitation, it’s full of holes and the court will decide when the parents cannot agree. Easy for me to see that it could cause more contention….outside of being very explicit in the parenting agreement.

    Research Advisor
    In Illinois HB 2992 Right of 1st Refusal is NOW Public Act 098-0462. Please see Website (above) for a discussion why Laufers is absolutely wrong in his disapproval of such clauses, even among so-called high conflict couples. Basically, Laufers gives automatic veto rights to a parent who wants to minimize the involvement of the other parent in their child’s life. This is problematic. It is usually what accounts for the limited contact and involvement the court allows one parent. It is also part of the problem where we are seeing increasingly one parent dropping out of the child’s life as I reported in the article, “The Urgency of Reform” in this site. A detailed enforceable parenting plan that maximizes the involvement of both parents is doable. We just need to be willing to do it. Laufers’ tip is not helpful at all.

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