Texas Child Custody and the Right of First Refusal

Life is complicated, and child custody schedules don’t always work out as planned. Between work, school, and other outside obligations, both parents will have days when meeting their scheduled parenting time responsibilities just isn’t possible. Before you beat yourself up with a good dose of parental guilt over that, remember that it’s okay if you’re not always available—in fact, the court expects this. Which is why Texas family law gives parents the option to include the right of first refusal in their custody arrangement.

The right of first refusal is a child custody doctrine that requires the custodial parent to offer possession time to the non-custodial parent before asking someone else to cover for them. On the surface, this seems like a win-win for everyone. However, there are a few drawbacks that savvy co-parents should consider before adding it to their plan.

Here’s a closer look at the pros and cons of the right of first refusal in Texas and what the Warren & Migliaccio team can do to help determine if this arrangement is a good fit for your parenting plan.

The Right of First Refusal Custody Doctrine

In Texas family law, the right of first refusal is a child custody doctrine that requires co-parents to offer parenting time to each other first before outsourcing their responsibilities to someone else. (In other words, call the other parent before scheduling a sitter.)

This optional provision can be added to either a temporary child custody order or a final order. Similar to a studio optioning moving-making rights or a publisher calling first dibs on the next novel for its best-selling author, the right of first refusal requires a co-parent to offer excess parenting time to the other before opening the floor to other offers.

The exact specifications of this arrangement can vary, depending on the family’s particular needs. However, this doctrine generally requires co-parents to notify each other in writing or by phone whenever there is a parenting time conflict.

Right of First Refusal: The Benefits

The right of first refusal is often popular with concerned, involved co-parents, who think, “Well, if I can’t be with my child, then who better to watch them than their other parent?” And, in theory, they aren’t wrong.

For the most part, no one will love, care for, and protect your child better than you and its other parent. The right of first refusal custody doctrine makes it easier to strengthen this child/parent relationship and encourages co-parents to lean on each other for support (rather than outside help). This fosters a compromise mentality and allows flexible parenting time to flourish, strengthening amicable relationships between co-parents and other family members.

Some of the benefits of incorporating right of first refusal into your parenting plan include:

• Extra time—each parent has the right to claim any of their child’s extra time, increasing their involvement and expanding opportunities to deepen their relationship.
• Consistency—leaving a child with their other parent as much as possible gives that child an increased sense of stability, which can reduce their stress and overall anxiety during an already difficult time.
• Reduced expenses—the right of first refusal allows parents to save on steep childcare costs.
• Emotional stability—this arrangement requires co-parents to communicate often and amicably, decreasing the amount of emotional stress in the family and fostering better relationships for the future.

Custody agreements rarely seem to give you as much time as you want with your child, so it only makes sense that you’d want first rights to claim as much of that extra time as possible. However, the reality of first refusal isn’t quite so straightforward.

Right of First Refusal: The Cons

This provision has good intentions, but it does have limitations and may not be the best option for everyone. For example, consider these cons:

• Geographic Limits—for this provision to be successful, parents must live in the same general area as one another, which might limit their ability to move, including future employment options.
• Scheduling Resentment—this arrangement creates the perfect environment for resentment to fester, especially if one parent always has to cover for the busier one.
• Relationship Demands—parents must have an active, amicable relationship, and there is little room for space and emotional distancing.
• Enforceability Issues—Texas law does not require the right of first refusal. This is an optional clause, and while it is technically enforceable (as are all the terms in your custody order), violations are difficult to prove.
• Practicality concerns—this arrangement severely limits a single parent’s ability to call upon outside support for help, eliminating the child’s grandparents and other close family members from consideration until the other parent has responded. This can be physically and emotionally exhausting and put you in a bind if you need an answer quickly.

Before implementing the right of first refusal into your custody agreement, it’s essential to consider how these drawbacks will impact your situation and whether they’ll outweigh the benefits.

Texas Child Custody and the Right of First Refusal

The right of first refusal is not required by Texas child custody law. Instead, it’s an optional provision that parents can choose to include or discard, depending on the family’s needs.

Under the Texas Family Code, all custody decisions are made according to the child’s best interest. This involves balancing time with both parents against the child’s need for a stable, loving environment and encourages parents to engage amicably in their parenting duties as much as possible.

To determine what’s best for your child, the court examines several individualized factors, such as:

• The child’s physical and emotional needs.
• The child’s relationship with each parent.
• The child’s wishes (if over 12).
• The parenting abilities of each parent.
• The safety and stability of each home.
• Any history of abuse or neglect.

As co-parents, you’re encouraged to work together to find the best arrangement for your child. As long as your agreement meets specific state standards, you have a lot of the flexibility to draft a parenting plan specifically catered to your family’s unique needs, which includes the option to include a right of first refusal clause.

Parenting Plans and the Right of First Refusal

Since the Texas Family Code doesn’t specifically mention the right of first refusal, the only way to make this arrangement enforceable is to include it in your parenting plan.

A parenting plan (also known as a “custody agreement” or “custody order”) is an agreement co-parents make, which outlines the various rights and responsibilities each of them has in raising their child. This includes child care, parenting time (also known as physical custody and visitation in other states), along with child support payments, and legal decision-making authority.

Parenting agreements and custody battles are often associated with divorce. However, they also affect non-married co-parents and are required whenever parents share custody without living under the same roof.

Enforcing a Right of First Refusal Clause

Once a judge has signed a custody agreement, all the terms outlined in that document are enforceable. This includes provisions you voluntarily included—but which aren’t technically required by the state—such as a right of first refusal clause. Failure to abide by a custody order can have serious consequences. Depending on the circumstances, this can result in hefty fines, contempt of court, and, in some cases, even jail time.

If your child’s other parent isn’t obeying some (or all) of your custody order, you must file a motion to enforce with the court. This will then likely proceed to a hearing, where you’ll both have the opportunity to tell your side of the story and present evidence to support your claims. Afterward, a judge will determine if there’s been a violation and what—if any—punishments and adjustments need to be made to ensure compliance.

The Legal Challenges of Enforcement

The problem is that the right of first refusal operates on a kind of honor system between co-parents. Under this arrangement, if the child isn’t with you, you naturally assume they’re with the other parent. Most of the time, you have no way of knowing if this isn’t the case and finding the proof to support your hunch can be frustrating, time-consuming, and expensive to litigate.

In these situations, the best thing to do is work things out with your child’s other parent amicably. If you can’t agree on a solution, an experienced family law attorney can help guide you through the enforcement process and ensure your child’s best interests are met.

Talk to a Texas Family Law Attorney About the Right of First Refusal

As a parent, you want what’s best for your child. At Warren & Migliaccio, we understand that these decisions aren’t easy and how stressful it can be learning to navigate the dynamics of a new co-parenting relationship. The good news is you don’t have to do it alone.

If you or a family member have questions about the right of first refusal or any other child custody case issues, we want to hear from you. For a free consultation, call our law office today at (888) 584-9614 or contact us online, and let an experienced family law attorney help you draft the best child custody agreement for your family’s unique needs.