The Right of First Refusal in Parenting Plans

Many people going through a divorce try to get as much parenting time with their children as possible.  While people may think that this is limited to receiving a 50/50 parenting time schedule, there are other ways to increase the amount of time the child spends with a parent.  On April 10, 2017, the Appellate Division addressed one way to do this, known as the “right of first refusal” in Ferrer v. Durkin.

What is the right of first refusal?

The right of first refusal means that if a parent cannot be physically present with the children during his or her parenting time, they must offer the time to the other parent prior to getting a babysitter.  For example, if Mom has parenting time on Mondays, but works until 8 p.m., she would have to offer Dad parenting time from after school until she returns at 8 p.m.

In many cases, parties who choose to include a right of first refusal define exactly when and how it is to be used.  For example, if the custodial parent cannot be there for more than a certain time frame, such as 6 hours or maybe overnight, then the other parent has to be offered the right to have the child during that time.  Defining the time frame like this avoids issues when you might want to leave a child alone for a shorter time – such as going to the gym or food shopping.  Being careful about the terms makes it easier to understand exactly what the other parent’s expectation is with regard to these events.  In cases where communication between the parties is poor, failing to properly define a time frame inevitably leads to arguments.

Ferrer v. Durkin Decision

In this case, the parties agreed to 50/50 custody of their children.  The parties lived within 2 miles of each other, which made this a very workable schedule.  Mr. Durkin refused to settle the custody portion of the case over two relatively minor issues: a vacation schedule and the right of first refusal.

Due to Mr. Durkin’s refusal to reach a settlement on these issues, it was necessary to hold a trial.  During the trial, Ms. Ferrer testified that she works as a nurse and has her parents and/or Mr. Durkin’s sister watch the children when she is unavailable.  Mr. Durkin claimed that it was his constitutional right as a father to be permitted to spend additional time with his children.  Further, he argued it was a violation of his rights if the trial court permitted the extended family to babysit when he was available during Ms. Ferrer’s parenting time.

The trial court applied the “best interest” standard, which means that it evaluated the case based on what it believed was in the best interest of the children.  The judge also evaluated the demeanor and credibility of the parties during trial.  Ultimately, the court determined that the inability of the parties to reach an agreement on the issues was due largely to Mr. Durkin’s refusal to compromise his position.  The judge also felt that Mr. Durkin was using the trial to attempt to smear his ex-wife’s reputation.

The trial court judge determined that the parties’ inability to communicate and agree on issues with the children was the overriding reason why the right of first refusal was not workable.  Therefore, the trial court denied Mr. Durkin’s request that a right of first refusal be included in the parenting plan.  The Appellate Division agreed.  If the parties were able to communicate, cooperate, and compromise effectively, which is generally understood to be in the children’s best interest, there may have been a different outcome.

Establishing a custody and parenting time agreement is often a very emotional and difficult aspect of a divorce.  At DeTorres and DeGeorge, our attorneys handle these issues on a daily basis and have had great success in resolving these matters.  If you need assistance with your divorce and/or custody issues, please contact us today at 908-284-6005 or 973-425-5158 to schedule a consultation with one of our attorneys.

Children & Divorce Guide

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