What is the Right of First Refusal in Texas Child Custody Cases?

Little boy holding adult's hand

A child custody order is a court-approved parenting plan that establishes a visitation schedule and designates the parents’ specific rights and duties following a divorce. Custody orders include details related to visitation, possession, physical custody, and other aspects of post-divorce co-parenting.

A common provision that divorced parents choose to include in their custody order is known as the Right of First Refusal. But what is the Right of First Refusal in a Texas child custody case, and do you need to include this clause in your custody order?

Consult with a Copperas Cove child custody lawyer to discuss your particular situation and determine whether you need the Right of First Refusal and other provisions to protect your rights as a co-parent in Texas.

What is the Right of First Refusal?

The Right of First Refusal is a clause that many divorced parents choose to include in their custody order to reduce conflict and ensure effective co-parenting. The right can be a helpful addition to a child custody order with pre-planned visitation schedules.

The clause requires a parent who is unable to take possession of the child to give the other parent the opportunity to watch the children instead of using a babysitter or another person to care for the kids.

The Right of First Refusal is a useful provision to include in a child custody order because it helps eliminate conflicts between the parents when unanticipated circumstances arise and make it impossible for the parent to exercise possession.

How Does the Right of First Refusal Clause Work in Texas Custody Orders?

The purpose of the clause is to give the other parent the option to spend more time with their children when the parent who has possession cannot care for the child during their visitation time.

Here’s how the Right of First Refusal works in a nutshell:

  • The parent who cannot care for the child to exercise possession must ask the other parent if they can watch the children instead of using a babysitter or asking another person to watch the kids;

  • If the other parent agrees to spend additional time with the child, they must be allowed to spend time with the kids while the parent cannot take possession during their scheduled visitation; or

  • If the other parent refuses or is unable to watch the children, the parent who cannot take possession can place the children with a babysitter, daycare, or ask another person to provide care.

The Right of First Refusal clause is helpful because it allows parents to compromise and make minor changes to their visitation schedules when either parent cannot take possession of the child because of work or other circumstances. As a result, co-parents can avoid conflicts and maintain a healthy co-parenting relationship in the long run.

When to Include the Right of First Refusal in a Custody Order?

It may not make sense to include the Right of First Refusal in all child custody orders. Some divorced parents may benefit from having this clause in their custody order more than others. It may be a good idea to include the provision in your custody order if the following is true:

  • You and your ex-spouse are able to cooperate and willing to compromise

  • You and the other parent have good communication

  • You live close to each other (in one city or county)

Speak with a knowledgeable attorney to discuss your particular case and determine whether or not you need the Right of First Refusal in your custody order.

How Do Parents Comply with Custody Orders That Include the Right of First Refusal?

If your child custody order includes the Right of First Refusal, you need to understand how to exercise the right to ensure that you are in full compliance with the order. If you cannot provide care for your child on your visitation day, you are required to ask the other parent if they can watch the child as soon as you know that you will not be able to take possession.

In other words, you can exercise the Right of First Refusal to comply with your custody order in Texas any time you are unable to take possession of your child. Understandably, parents’ busy lives may make it impossible to take possession of their children when they are scheduled to do so all the time.

Unexpected circumstances may arise and get in the way of your visitation schedule. For this reason, it is imperative to include the Right of First Refusal in your child custody order to ensure that your co-parenting is flexible and effective.

However, it is vital to seek the legal counsel of a knowledgeable attorney to help you draft a custody agreement and include the Right of First Refusal properly.

What Other Provisions Do You Need to Include in Your Texas Child Custody Order?

The Right of First Refusal is not the only provision that your child custody order should contain. Other provisions that your child custody order should include can be broken into two categories:

  1. Provisions regarding legal custody (also known as “conservatorship” in Texas)

  2. Provisions regarding the parenting plan (possession)

It is important to seek the help of a skilled child custody attorney to create a custody order with all the necessary provisions regarding conservatorship and possession. The exact provisions that you need to include in your custody order will vary depending on your particular circumstances.

The custody order should clearly outline the parents’ rights to make decisions regarding the child’s education, healthcare, religion, and welfare. Most custody orders in Texas are based on joint managing conservatorship, which means both parents share decision-making about most issues.

No child custody order is complete without a clearly defined possession schedule. The custody order must contain provisions explaining the parents’ right to vitiation and possession. It is important that your custody order is prepared by an experienced attorney who can create an appropriate parenting plan that takes into account the child’s age, needs, preference, and other factors.

In addition, the parenting plan should clearly set forth the parents’ possession schedule for the holidays and vacations. Since the life of any parent can get quite unpredictable, it is important to make sure that the parenting plan allows for some room for deviation.

Get a free consultation with our Copperas Cove child custody attorneys at The Law Office of Brett H. Pritchard to create a proper parenting plan and custody order for your particular situation. Call (254) 220-4225 for a case review.
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