The idea of ‘first refusal’ may be better than the reality

Getting divorced is painful enough. When children are involved, the pain spreads to them.

To mitigate the damage, tread carefully with the issue of the right of first refusal. What might appear at first to be a reasonable compromise during negotiations between the parties often turns into a nightmare of contentious litigation.

Consider a couple that has agreed to joint legal custody (both have responsibilities to make decisions about the health, education and welfare of the children) but the mother has been granted sole physical custody, which means the children live with and are supervised by her. The father’s periodic visiting rights will be determined by the court.

So far so good. But suppose the mother wants to hire a babysitter in order to enjoy a night out with friends. If she has granted the father the right of first refusal, the mother would have to notify the father of her intended absence and give him the opportunity to take the children. This would apply every time a change in her schedule required outside assistance.

Suppose, further, that the mother has placed restrictions on the father’s drinking when he’s with the children. What happens when the father finds out that the mother herself has wine with dinner each evening? Can he restrict that habit? Very soon the restrictions that come with the right of first refusal can become unfair, unworkable or both.

To avoid all these stepping stones to litigation, consider several cautions:

Listen to your attorney. “Don’t suggest arrangements in the negotiations, however conciliatory they may seem, without the advice of an attorney,” says Lisa Owen, an attorney with Cauthorn Nohr & Owen with more than 20 years of experience in Divorce and Family Law. “We know how spot and avoid the pitfalls. You may believe your good-faith gesture is helpful, you but may not realize how it can hurt you down the road.”

Don’t impose restrictions on others you don’t want on yourself. The “don’t-drink-around-the-kids” prohibition is a good example. Make that part of the deal and you are very likely to find yourself similarly limited. “Remember,” Ms. Owen cautions, “you have to prove to the court there is evidence of a need for your proposed restriction.”

Keep the co-parent informed. This is always good advice. Both co-parents need to be informed about changes in schedules or routines. A habit of helpful communication will reduce friction for everyone.

Getting to a settlement in a divorce case can be stressful. You can reduce that stress by understanding what a right of first refusal can — and can’t — do for you.