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The folly of a court-ordered “right of first refusal”

The “right of first refusal”–the right to watch one’s children when the other parent would otherwise hire a sitter–is one of those concepts that sounds wonderful in theory but is a disaster in practice.  My clients sometime inquire about it; after seventeen years of family law practice, and my experience as to how these court orders operate, I encourage them not to seek it.

Separated parents who provide each other the opportunity to watch their children when they would otherwise need a sitter without the necessity of having that obligation be court-ordered don’t need a court order.  For separated parents who won’t allow the other to watch the child in such circumstances, imposing a court-ordered obligation adds anger and recriminations into what is already a volatile situation.

The problem is that almost every child ever conceived was conceived by folks who were, at one point, romantically–or at least sexually–attracted to the other[1].   Custody litigation thus involves people who were involved in a sexual/romantic relationship that has not worked out.  Even the most mature folks in this situation will have negative emotions and raw feelings.  Especially in very contentions custody cases, litigants tend not to be on the better half of such emotional maturity.   Typically there’s much anger and bitterness in these cases by one or both parents.

A court-ordered “right of first refusal” tends to be a disaster in these situations.  The obligation gets imposed when one parent is going out socially while the other parent has no set plans.  This presents an invitation to prying.  Typically, the parent exercising the right will question why the other parent is going out, with whom, and where.  The parent who’s going out will naturally resist such questioning, as it involves an ex-lover inquiring into private matters and it potentially provides fodder for a subsequent custody or visitation modification case.  This “right of first refusal” unwittingly creates a situation in which ex-lovers who cannot get along are now exposing intimate aspects of their ongoing romantic life while potentially providing information they can use against the other.  This naturally devolves into prying; this naturally devolves into the parties feeling the other is being judgmental; this naturally devolves into greater anger and negative emotions.

For separated parents who are capable of graciously allowing the other to watch their children at times they need a sitter, the gesture of such offers is wonderful and no court order is necessary.  However, where separated parents have too much negative emotion towards the other to be able to make such offers absent a court order, imposing a court-ordered obligation is insanity.
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[1]I realize that some children are conceived through rape or incest; thankfully in seventeen years of family law practice, none of my custody cases involved such a situation–at least that I am aware of.

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