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What is the “Right of Refusal” in Texas Parenting Plan?


If you have a kid and a pending divorce or child custody case, you will naturally have many questions about what will happen to the children. Co-parenting or shared custody is normally the set up, save for some special circumstances.

During the times that your child is not with you, you might have a lot of worries. In my experience, it is one of the most helpless positions a parent is put in. I have heard from many past clients that when their children were with their ex-spouses, they later find out that their children were actually left under the care of strangers for an entire weekend without their knowledge and consent. It doesn’t seem right to leave your child to a baby sitter, for example, if you are available at that time. It could have been you spending time with your child when your ex-spouse is unavailable. Isn’t it that the very purpose of visitation is for a parent to spend time with his or her child? If that is not possible, then isn’t it just proper for the other spouse to personally look after the child?

If you are not comfortable leaving your child under the care of someone else other than your soon ex-spouse, you might be interested to know more about the Right of First Refusal.

What is the Right of First Refusal?

This is your right, as a parent, to be informed by your ex-spouse that he or she is not available to look after your child during the time he or she is entitled to take possession of your child. Once informed, you then have the first opportunity to take possession of your child. You can also, of course, decline. It means that your child cannot be left with anyone else if you don’t decline first.

The same way, you also have to inform your ex-spouse if you can’t be available. Say, if you are called in for work on a Saturday, you will need to contact your ex-spouse to see if he wants to have your child over. If he or she says yes, you will have no choice but to let him or her take your child. If he or she declines, then you can choose to have your mother or a baby sitter to come over to watch over your child.

If you plan to have a divorce, or you have a pending one right now, you and your or soon-to-be ex-spouse can choose to include the Right of First Refusal in your Parenting Plan. If this is something you might be interested in, you should contact your lawyer so you can have this arrangement. But, before that, it is best you also know the advantages and disadvantages.

Pros and Cons of the Right of First Refusal

If you have a flexible schedule, this is a good idea. Let us suppose that you are only granted visitation rights to your child. This means that your child will primarily live with your soon ex-spouse and you will have a more limited time with your child compared to your soon ex-spouse. If you have the Right of First Refusal, you can have more opportunity to bond with your child.

Imagine this scenario: You were informed that your ex-spouse will be out of town for a week. You decide to pick your son up so you can spend more time with him. You later find out that your child is at your ex-spouse’s mother. You go there to get your child but your then mother-in-law gives you a hard time. She won’t give you your son. It can get complicated, right?

If you have a Right of First Refusal clause in your Parenting Plan, your ex-spouse’s mother will not have a say. You can get your son whether she likes it or not. You have more right than her as a parent.

The extra time you spend with your child can add up and have a huge impact in your relationship.

On the other hand,  if you have primary custody of your child, the Right of First Refusal can be burdensome. It can be more restrictive for you because you can’t make plans on your own, you will always have to consult with your ex-spouse.

Now, imagine this scenario: Your boss asked you to go out of town for an important meeting. You then have to call your ex-spouse, inform him or her of the situation, and make arrangements for him or her to pick up your child, not to mention that you again have to make arrangements to pick up your child from him or her. Suddenly, your boss tells you that the meeting is cancelled and you no longer need to go out of town.

It can be a hassle, right? It would have been easier, for example, for you to call your parents and have them look after their grandchild while you are gone. In case you can be back earlier, you don’t have to make arrangements or go to your ex-spouse’s house to pick up your child. You can just go home right away and find your child there.

There are many scenarios that can play out. There will be times when the Right of First Refusal is a great thing, and there will be times when you wish you didn’t have it. I would say, the best thing for you to do is to determine what is likely to be more workable for you and your soon ex-spouse. You have to take your soon ex-spouse into consideration because you will both have to agree whether you want it or not. It can also be frustrating if you keep winding up in court due to violations of your Divorce Decree.

Say, if you cannot communicate well with your soon ex-spouse, informing each other when you are unavailable and making arrangements may be easier said than done. Whether you are the one who violates your agreement or not, you will still have to hire an attorney, pay his fees, and appear in court for a hearing. That is why it’s very important to discuss this with a lawyer as early as possible. You have to know what is practicable for you and your soon ex-spouse. The parenting plan must be carefully crafted and you must make sure it’s something you can abide to.

Each divorce or child custody case is different. It’s not a shame to admit that there is a communication problem between you and your soon ex-spouse or that it is difficult to work together with your soon ex-spouse.

There are a lot of things to take into consideration such as the distance of your home and your soon ex-spouse’s. If it’s an 8-hour drive to your soon ex-spouse’s home, it might not be wise in terms of logistics to have a Right of First Refusal clause in your parenting plan. However, if your soon ex-spouse’s residence is just a block away, pick-ups and drop-offs won’t be a problem and Right of First Refusal is more practicable. Logistics is not just in your best interest but your child’s too. Travel time might also affect your child’s studies and/or health. Children must have enough time to rest and to study and prepare for school.

Always consider your options before agreeing into something. It is possible that you will be pressured by your soon ex-spouse to agree with a Right of First Refusal clause.

If you have more questions about the Right of First Refusal, you can call me at 512-487-7704 or send me an email at

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at