Navigating post-divorce parenting in Tampa requires clear guidelines and well-drafted agreements to ensure both parents understand their rights and responsibilities. One provision that often comes up during the drafting of parenting plans is the “right of first refusal.” While it may sound like a legal technicality, the right of first refusal can have a significant impact on how time-sharing operates—and on the parent-child relationship itself.
The right of first refusal in parenting plans generally means that before one parent arranges for third-party childcare during their designated parenting time, they must first offer the other parent the opportunity to care for the child. At its core, it is a child-focused provision designed to prioritize parental involvement over hired caregivers or extended family. But like many family law concepts, its application is not one-size-fits-all.
In this detailed article, we’ll explore what the right of first refusal means in Florida, how Tampa courts view it, when it can be helpful or problematic, and how a Tampa divorce lawyer can help you determine whether it belongs in your parenting plan.
What Is the Right of First Refusal in a Parenting Plan?
In family law, the right of first refusal is a clause that allows the non-custodial or non-residential parent the first opportunity to care for the child when the custodial parent is unable to do so during their scheduled time. This could be due to work, illness, social commitments, travel, or any other reason that requires third-party care for a significant amount of time.
The key idea is that if a parent isn’t personally available during their allotted time-sharing period, they should first offer that time to the other parent before hiring a babysitter, dropping the child off with a relative, or placing them in daycare.
This provision can be crafted broadly or narrowly. For instance:
- Broad provision: Applies to any period of unavailability, no matter how short (e.g., 2 hours or more).
- Narrow provision: Applies only to overnight absences or absences exceeding a certain threshold (e.g., 8 or 12 hours).
A Tampa divorce lawyer can tailor this provision to your specific parenting dynamics, ensuring it serves your child’s best interests without becoming a source of unnecessary conflict.
Is the Right of First Refusal Required in Florida Parenting Plans?
No. Florida law does not require that parenting plans include a right of first refusal. Including it is entirely discretionary and subject to negotiation or court determination. Judges in Tampa may include it if both parties agree or if the evidence shows that it benefits the child.
However, not every case warrants such a provision. Some parents prefer more flexibility, while others are concerned that offering the other parent every opportunity for additional time might undermine boundaries or increase litigation. A Tampa divorce lawyer can help evaluate whether this clause is appropriate based on your co-parenting relationship, work schedules, trust level, and the child’s routine.
Benefits of Including a Right of First Refusal Clause
There are several potential advantages to incorporating the right of first refusal into a Tampa parenting plan:
1. Promotes More Time with Each Parent
The provision can give both parents more time with their children, especially when one parent travels frequently or works irregular hours. This can help reinforce the parent-child bond, particularly for the parent with less scheduled time-sharing.
2. Reduces Childcare Expenses
Instead of paying for after-school care, babysitters, or nannies, parents can rely on each other when they are available. This can lead to significant cost savings and reduce financial strain after divorce.
3. Encourages Cooperation and Flexibility
When both parents agree to prioritize time with each other over third parties, it fosters a spirit of cooperation and may lead to smoother co-parenting.
4. Protects Parental Rights
The right of first refusal ensures that extended family or other caregivers don’t encroach on a parent’s opportunity to spend time with their own child during the other parent’s absence.
A Tampa divorce lawyer can ensure the provision is clear, enforceable, and realistic so that it brings these benefits without introducing ambiguity or new disputes.
Drawbacks and Potential Challenges
Despite its advantages, the right of first refusal can sometimes create problems, especially in high-conflict or inflexible co-parenting relationships.
1. Overuse Can Lead to Disruption
If a parent is frequently unavailable and the right of first refusal is triggered repeatedly, it can disrupt the child’s schedule. Constant back-and-forth may create instability and stress for the child.
2. Can Fuel Conflict Between Parents
In contentious divorces, a right of first refusal clause may become another battleground. Disagreements may arise over whether the parent was truly “unavailable,” how much notice was provided, or whether refusal to provide care violated the agreement.
3. Lack of Specificity Leads to Misuse
Without clearly defined terms, this provision can be misinterpreted. For example, what qualifies as an “absence”? How much advance notice is required? Is text message notice sufficient?
A Tampa divorce lawyer can help you anticipate and address these issues in the language of your parenting plan.
Key Elements to Define in a Right of First Refusal Clause
To ensure the provision is functional and reduces ambiguity, a well-drafted clause should include:
1. Minimum Duration of Absence
Define how long a parent must be unavailable before the clause is triggered. For example:
- Applies only to overnight absences
- Applies to absences exceeding four hours
- Applies only during specific windows (e.g., weekends or workdays)
2. Notice Requirements
Outline how and when notice should be given. For example:
- Notice must be given via text or email
- Minimum of 24 hours’ notice required when possible
- Emergency absences exempt from notice requirement
3. Response Time
Indicate how long the other parent has to respond. For example:
- Must respond within two hours of receiving notice
- Failure to respond timely is considered a waiver of the opportunity
4. Transportation Logistics
Specify who is responsible for transporting the child if the offer is accepted. This avoids disputes over pick-ups and drop-offs.
5. Documentation and Recordkeeping
Include whether communication must be documented and how the parties will resolve disputes over compliance.
A Tampa divorce lawyer can help craft a provision that is comprehensive and avoids unnecessary loopholes.
When a Right of First Refusal Makes Sense
While every family dynamic is different, the right of first refusal may be especially helpful in the following scenarios:
- Parents live near each other: Proximity makes it more feasible to hand off the child on short notice.
- One parent has a demanding work schedule: The clause can give the other parent more opportunities to participate.
- Shared parenting goals: If both parents value increased involvement and can communicate reasonably, the clause can be very effective.
- Young children: For infants and toddlers, consistency and bonding time with each parent may justify broader application of the right.
Your Tampa divorce lawyer can evaluate whether these circumstances apply to your case and whether to advocate for the inclusion of the clause.
When the Right of First Refusal May Not Be Appropriate
There are also circumstances where the clause may be unnecessary or even harmful:
- High-conflict co-parenting: If communication is strained or hostile, the clause may be more likely to cause disputes than cooperation.
- Significant geographic distance: Long travel times may make the clause impractical, especially for short absences.
- Teenage children: Older children with busy schedules or personal preferences may not benefit from frequent changes in care arrangements.
- Work-related travel with no flexibility: If one parent travels frequently and unpredictably, triggering the clause may be burdensome.
In these situations, your Tampa divorce lawyer may recommend omitting the clause or narrowing its application significantly.
Enforcing or Modifying the Right of First Refusal
If your parenting plan includes a right of first refusal clause and the other parent violates it—by regularly using third-party care without offering you the opportunity—you may be entitled to legal relief. Enforcement options include:
- Filing a Motion for Contempt
- Requesting make-up parenting time
- Seeking attorney’s fees or costs
- Petitioning to modify the parenting plan
A Tampa divorce lawyer can help gather documentation, file motions, and represent you in court to ensure the provision is honored.
Conversely, if the clause is no longer working, you may seek to modify the parenting plan. Modification requires showing that a substantial, material, and unanticipated change has occurred—and that a new arrangement would be in the child’s best interests.
Drafting a Right of First Refusal That Works
Here is an example of a clear, enforceable provision:
“If either parent is unable to personally care for the minor child during their scheduled parenting time for a period exceeding six (6) hours, that parent shall notify the other parent by phone or text as soon as practicable, but no less than 24 hours in advance when possible. The other parent shall have the right to care for the child during this period if available and shall respond within two (2) hours of receiving notice. Transportation shall be provided by the parent initiating the request unless otherwise agreed. If the other parent declines or fails to respond within the time frame, the parent may make other childcare arrangements.”
This kind of provision ensures clarity, prevents conflict, and sets expectations that both parents can follow.
A Tampa divorce lawyer can further refine the language to suit your unique circumstances.
FAQ
Q: Is the right of first refusal required in Florida parenting plans?
A: No. It is not required by law. It can be included voluntarily by agreement of the parents or ordered by a judge when appropriate.
Q: Can I refuse to include the right of first refusal in my parenting plan?
A: Yes. You are not obligated to agree to this clause. A Tampa divorce lawyer can help you argue against it if it is not in your child’s best interest.
Q: What if the other parent violates the right of first refusal?
A: You may file a Motion for Contempt or a Motion to Enforce. The court can sanction the violating parent or modify the parenting plan.
Q: Does the clause apply to short errands or emergencies?
A: It depends on how the clause is written. You can specify that it only applies to absences longer than a certain number of hours.
Q: Who pays for transportation if I exercise the right?
A: The parenting plan should specify this. Typically, the initiating parent is responsible unless otherwise agreed.
Q: Can this clause be modified later?
A: Yes. If your circumstances change, you can petition the court to modify or remove the provision.
Q: Does it apply to school hours or daycare?
A: Usually not, unless the plan specifically states otherwise. Most clauses apply to times when the child would otherwise be with the parent.
Q: Can I include the clause even if the other parent is opposed?
A: Possibly. If the case goes to trial, the judge may decide to include the provision if it serves the child’s best interests.
Q: What if I don’t trust the other parent to follow through?
A: You can request safeguards such as written notice, time limits for response, and specific communication methods.
Q: Should I work with a Tampa divorce lawyer to include this clause?
A: Yes. A Tampa divorce lawyer can help you craft a clause that is clear, enforceable, and tailored to your parenting dynamic.
The right of first refusal can be a powerful tool for enhancing parental involvement and promoting flexibility in your parenting plan. But it can also become a source of frustration if not carefully drafted and properly enforced. Whether you’re looking to include this provision or push back against it, a seasoned Tampa divorce lawyer can guide you through the process and help create a plan that truly works for your family. With the right strategy, you can ensure your parenting plan reflects your values, supports your child’s stability, and reduces conflict for years to come.
The McKinney Law Group: Divorce Support in Tampa for Stay-at-Home and Single-Income Spouses
If you’ve stayed home to raise children or support your spouse’s career, divorce can feel financially overwhelming. At The McKinney Law Group, we advocate for Tampa clients who need strong support as they transition to the next phase of life.
We assist with:
✔ Alimony and rehabilitative support based on long-term need
✔ Ensuring you receive a fair share of marital property and retirement
✔ Building parenting plans that reflect your caregiving role
✔ Post-divorce financial planning and referrals
✔ Guiding you through every stage of the process with clarity
Call 813-428-3400 or email [email protected] to protect your financial future.