Should You Include a Right of First Refusal Clause in Your Georgia Parenting Plan? Pros and Cons Explained

In the ideal world, you and your child’s other parent could agree on decisions about your child's care. Yet, that may not always be the case, and in some situations, you need to establish an agreement that outlines each parent's rights. That includes the right of first refusal in Georgia.

At Attorney Sharon Jackson LLC, we can help you determine whether or not this should be included in your coparenting plan and what it could mean for your lives going forward.

What Is the Right of First Refusal in Custody Agreements

A right of first refusal in a custody agreement is a clause within a parenting plan or custody order that requires a parent to first offer the other parent the opportunity to provide care for the child before using a third-party caregiver.

For example, if you and your child’s other parent share custody, and it is your day to have your child. Something happens, and you need to rush to another location. If there is a right of first refusal in your agreement, you must first contact the other parent to determine if they want to use that time for their child. If they do not, you can find another person to care for the child.

This applies to any third party who may be watching your child. Examples may include a babysitter,grandparent, or friend, but in long-term situations, a daycare could also be involved.

It is common in joint custody cases for one parent to request a first right of refusal clause. The parent believes that  is a way to promote parental involvement in the child’s life over anyone else’s involvement. Georgia Courts however are not always receptive to it as it often becomes a source of conflict between the parties resulting in contempt motions being filed and landing the parties back in court even after custody and visitation have been determined by a judge or agreed to by the parties. As you consider the various custody agreement clauses that could apply to your situation, consider the following benefits and disadvantages of this particular clause.

Frequently Asked Questions About Right of First Refusal in Custody Agreements

The Pros of Including a Right of First Refusal

There are clear benefits to having the right of first refusal in a Georgia custody agreement. Remember that it works both ways, meaning it could also mean more time for you. Some of the benefits of including it in your parenting plan include:

• More time with both parents. It supports the child’s involvement with both parents. This can strengthen the parent-child bond, which is more complex in situations where both parents do not live in the same home.
• Transparency and cooperation. It also promotes better transparency in the process of raising a child. It can encourage better co-parenting as well. Both parents are involved in situations that impact the child.
• Reduces reliance on others. In the right situations, it can effectively reduce reliance on a third-party caregiver. When it is in place long-term and consistently, it could reduce childcare costs.
• Supports the child’s emotional stability. When the child’s care is left, in most situations, between the two parents, this supports the child’s emotional stability because they know their caregivers so well.

The Cons and Common Conflicts of Right to First Refusal

This process can have some limitations. Ultimately, custody agreement clauses do not automatically improve relationships between parents, which could lead to complications.

Some potential concerns that may arise out of this situation include:

• Frequent disputes. In situations where there are concerns about the availability of the child’s other parent, this clause could lead to frequent disputes, including those related to availability and scheduling.
• Hard to enforce. There are some situations that can be hard to enforce or interpret. For example, what counts as enough time away that the parent has to reach out to the other parent before turning to a third party?
• High-conflict divorces. In a high-conflict divorce, there are more likely to be challenges involved. The reason is simple: communication is already strained in these situations, and more instances of communication may create more hardships.
• Can be misused. There is also the risk that this rule could be misused to monitor or control the other parent’s choices.

Is It Right for Your Family?

As you consider the pros and cons of first refusal custody, you may not be sure what is best in your situation.  If you decide to include a Right of First Refusal, it should be limited. Consider limiting the provision to overnight parenting time only or periods in which the other parent is at work for six hours or more.   You do not want you or the other parent to not be able to leave the kids with another person for one hour while they go to a doctors appointment or run a quick errand.

Remember that what is good for the goose is good for the gander.  The Right of First Refusal is almost never one-sided.  If you want it to apply to the other parent, the court will likely apply it to you as well.

I only prefer to use this provision in limited and special situations. It is not practical for people who live more than an hour away and often creates confusion and unnecessary stress for the children.  In some cases where parents are leaving the kids for days with third parties while the other parent is perfectly capable and available to care for the child, it is necessary.

What Georgia Parents Need to Know

It is critical to know that the right to first refusal is not required under Georgia law and that judges often frown upon it because of past experience It can be helpful in the right situation, but it is not needed in most coparenting arrangements. However, in all situations, good communication matters.

If you decide to include it in your co-parenting plan in Georgia, there are several factors to ensure are in place:

• Define minimum time away. Determine the minimum time away limit. For example, if you need to run to the grocery store, do you need to ask your co-parent if they want to watch the kids for an hour (most likely not). However, you should define how much time warrants having to ask.
• Notice requirements. Determine what notice requirements must be provided. If you know you will be working the weekend two weeks in advance, do you need to notify the child’s other parent before asking a friend to help?
• Preferred communication method. How do you want to communicate this availability? Though a phone call seems simple enough, it is not always the best option due to a lack of evidence.

If you have such a clause in place, considering how disagreements are mediated may also be necessary. In situations related to parental abuse or disregard of this clause, know what steps to take.

How an Attorney Can Help

Attorney Sharon Jackson is one of the best child custody lawyers in Georgia and is available to help you determine the best route forward. When you work with a Georgia family law attorney for matters like this, including every other element of your parenting plan in Georgia, you know what your options are. Let us help you create a clear, enforceable first refusal clause tailored to your family’s needs. Call us at (678) 436-3636 to discuss your options.