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Michigan Family Law Blog

What is a Right of First Refusal and Can it be Modified?

Posted by Cameron Goulding | Mar 30, 2019 | 0 Comments

Some divorce or separation cases where there are children involved will include a right-of-first-refusal (RFR) provision.  Basically an RFR will provide that if one parent is not able to be physically present (absent parent) for over a specific period of time while the child is supposed to be with the absent parent, then the absent parent must notify the other parent and offer the other parent the right to exercise time with the child before asking a relative or other person to watch the child until the absent parent is able to be present.  It is typically intended to handle such situations as where one parent will be out of town for one night of his or her two or three night weekend parenting time.   An example of a standard RFR is as follows: each parent shall have the right of first refusal if they are going to be away from the minor child overnight OR for a twelve (12) hour work shift. If they will be away because of either of these, that parent must notify the other parent to offer them the first right of refusal for overnight parenting time. 

Are RFR Clauses Included in all Custody or Parenting Time Orders ?

RFR clauses are typically only included in divorce or separation judgments where one party requests it.  While it is easy to understand the reasons for requesting an RFR in a judgment of divorce particularly where parenting time is intended for the parent and child to spend time together, some judge's find these clauses problematic and may not include the same in the judgment even if requested.  The problem typically arises where one parent seeks to control and overreach into the other parent's time with the child.  The RFR can be a vehicle for the other parent to grill the child about parenting time and be used in unintended ways.  This can be particularly acute where one parent remarries or has a serious relationship with a new person because sometimes the other parent will seek to use it as a means to restrict the ability to ever leave the child alone with the new spouse even if it is not a violation of the RFR.

For example, I am familiar with a case where one parent scheduled an overnight for the child with friends and family at the friend's home.  The parent then spent the evening at his girlfriend's home and picked the child up in the morning.  The other parent filed a motion seeking to have him held in contempt for violating the RFR clause because he was not present during the sleepover at the friend's home.  Conversely, if one parent offers the other parent the RFR too often, the other parent might seek to use that as a basis to attempt to modify the parenting time schedule.  Finally, because it is considered a condition on parenting time, it can be difficult to modify the provision if problems do arise.

Working with Michigan Custody Attorneys to Protect Your Rights

Custody and parenting time are difficult and complicated issues.  Often something that seems straight forward and perhaps a good idea must be given deep consideration.  While RFR clauses are perfectly fine in some cases, the exact same clause may cause serious parenting time problems down the road.  Contact Michigan custody attorney Cameron C. Goulding to discuss your options. Working with a good Michigan custody attorney from the beginning of your action may avoid unforeseen hardship later.

About the Author

Cameron Goulding

A native of Oakland County, Michigan, family lawyer Cameron C. Goulding has been providing counseling and legal services of the highest caliber to individuals and families in Southeastern Michigan for over 24 years. Mr. Goulding grew up in Oakland County, Michigan and graduated from Birmingham G...


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