Understanding A Caregiver's Right To First Refusal In A Custody Agreement

If you are in a custody battle and are preparing to relinquish primary physical custody to the other parent in exchange for regular visitation, you should talk with your child custody law attorney about the caregiver's first refusal rights. Few parents know that these rights exist, let alone what they mean. Here's a look at what you need to know about this clause and the rights that it can give you in your custody agreement.

What Are Caregiver's First Refusal Rights?

Caregiver's first refusal rights give you the legal right to be the first choice for your children when they need to be taken care of. Whether the other parent is looking for childcare for work, a social event, or even to run to the store, he or she would be legally required to contact you first and provide you with the option to watch them. Only in the event that you refuse are they legally allowed to seek someone else to care for the children.

Is There Any Kind Of Restriction To These Rights?

If you've opted to ask for the right of first refusal, the only restrictions to those rights are the ones that you or the other parent include in the clause. For example, you could stipulate that you have the right to the first refusal for care during any period, no matter how brief. Or, you could mandate that you must be given the option in the event that the other parent will be away for a half-hour or longer. It's up to you how you want to define the terms, but once the clause is approved by the courts, it is legally binding as written.

Are Caregiver's First Refusal Rights Enforceable?

When first refusal rights are included in a custody agreement, those rights are as enforceable as the rest of the custody agreement. That means that you have the legal right to take custody of your children at any time if they are left in someone else's care before you've had the opportunity to refuse that care.

For example, if the other parent leaves the children in the care of their family without contacting you first, you have the legal right to go ask the current caregivers to turn the children over to you. In the event that you refuse, you can call local law enforcement. With a copy of the custody agreement and the first refusal clause, the police will have the information necessary to enforce the agreement.

Further, if you can document that the other parent has done this on more than one occasion, you could take that evidence to the courts and ask that the parent be found in contempt of the court order.