The “right of first refusal” or “right of first care” is a common provision in child custody and parenting agreements. In its most basic form, the right of first refusal means that when one parent needs child care, he or she must offer the other parent the opportunity to care for the child before contacting a babysitter or another family member to provide the care. While this seems like a reasonable provision in most cases, it may not be appropriate in some cases for a number of different reasons.

Although many parents agree to include the right of first refusal in their custody and parenting plans, other parents do not. In a case where parents cannot agree on the right of first refusal, a judge must decide whether including the right of first refusal in a parenting plan is in a child’s best interest. For instance, if the parents do not have a good relationship and have little contact with one another, a court might find that imposing the right of first refusal against one parent’s will is not in the child’s best interests. In other cases, if a parent is only may be called into work for two hours at a time during his or her time with the children, but only for an hour or two, it may be impractical to contact the other parent and request him or her to provide child care.

Therefore, having the right of first refusal is far from automatic. Not every parent has this right, and the court will not always grant a parent this right over the objection of the other parent. Courts may tend to favor the inclusion of the right of first refusal in parenting plans, particularly for extended periods of time, but they will not always require the parties to exercise it. A good example of a decision regarding the right of first refusal is found in the case of Ferrer v. Durkin, N.J. Super. App. Div., Docket No. A-4880-15T1, June 26, 2017. Although the parents had shared custody of their children, they also had a difficult relationship in which Father often argued and refused to compromise with Mother over minor aspects of their parenting agreement. The trial court declined to implement the right of first refusal as Father requested, and Father appealed. On appeal, the appellate court found that the trial judge did not abuse his discretion in finding that imposing the right of first refusal in this particular case was not in the best interests of the children.

The experienced child custody and parenting time lawyers at Argentino Family Law & Child Advocacy, LLC, are eager to answer your questions and help you understand how the right of first refusal works under New Jersey law. As your attorneys, our focus is on how to best represent you in your case and work toward your desired goals. We have handled countless child custody, divorce, and family law proceedings over the years, and we know how to assist you in reaching the best possible outcome in your case. Call our offices today at (973) 868-0958 and learn how we can help you with your New Jersey custody and parenting time case.