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Right of First Refusal – Pandora’s Box

November 23, 2014

Right of first refusal (ROFR) refers to an agreement between separated parents such that they will first go to each other if in need of a care provider for the child (babysitter).

ROFR is a Pandora’s box.

Parents who otherwise get along well and respect each others role in the child’s life will typically rely on each other for this naturally.

Parents who do not get along well and where one may try to limit the others time with the children (or mutually fight over parenting time) will squabble about what triggers this right – be it 1 hour’s need for care, overnight need for care or anything between or greater.

Assuming parents agree on what triggers the need for the ROFR provision, then when the need arises, higher conflict parents may then be seen to play games around was one really away from the kids for the duration required to trigger the provision. In other words, parents who do not want to get along and who do not want to provide any additional time with the kids beyond the residential schedule or use the children as pawns in their dispute, will always find ways to manipulate this provision. Because the provision is there and if it is being manipulated, it keeps tensions and conflict between the parents alive to which children are inevitably exposed.

If you are going to have a ROFR provision in your parenting plan, the parents must possess the capacity to honor the agreement. If there is concern they will not honor this agreement, then it is likely best to leave it out. Parents argue strenuously at times for it to remain in and to have mechanisms for enforcement. Still it will likely be better for the children to leave it out.

When we consider that conflict is the most salient predictor of poor developmental outcomes for children of separated parents, then less contact and more peace is actually better for the child.

The greater the conflict between the parents the more the need for a rigidly structured and easy to implement parenting plan that keeps the need for parental communication and cooperation to a minimum.

In circumstances of high conflict, parents should use whoever they want to babysit and if they come to use each other, consider it a bonus. However, using or not using each other is a knife that cuts both ways. If one doesn’t rely on the other, both should know what to expect in kind, but still, entrenching a provision that is likely doomed to create conflict is is apt to be worse for the child than the loss of extra time with the other parent. Sad, but true – mitigating conflict is more important.

Don’t go courting a Pandora’s box.

This  other blog post may help appreciate the comments above more;

I am Gary Direnfeld and I am a social worker.

Gary Direnfeld, MSW, RSW

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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  1. Gary,
    I agree wholeheartedly with your suggestion that bringing the ROFR into a mediation is not a good idea. If they bring it up and want to discuss it I of course do. But I no longer raise it up as something we “need” to discuss. It is similar to discussing “how and when to introduce the kids to a new significant other”. It usually leads them unnecessarily down a bad road.

  2. S T Tong permalink

    Some parents seem to WANT to place their co-parent on the spot, to catch them “failing”, rather than to truly consider what is better for the child. This is a good point you have made. Better not to use ROFR in higher conflict parents.

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