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Right of first refusal in your custody plan

For many New Hampshire parents, the most painful part of a divorce is the separation from their children. Even the most generous custody plan may mean days, weeks or months apart from your children, and the loss of precious moments that are critical for forming a lifelong bond.

As you and your spouse haggle over custody rights, there are certain things you want to fight for. You may insist on having the children for certain holidays. You may want the right to choose the religious upbringing for your children. Perhaps you have strong beliefs about nutrition, vaccinations or extra-curricular activities you want to include in your custody agreement. However, don't forget to insist on the right of first refusal.

How does it work?

If your ex-spouse has custody of the children but must go in to work or goes out on a date, who will watch the kids? Does your spouse have a regular sitter, or will the children spend the time with their grandparents? With the right of first refusal, the court will obligate your spouse to offer you the chance to take the children even though it is not your scheduled parenting time. If you are not available, you can refuse, but if your schedule allows, you have gained more time with your kids.

This sounds like a simple and reasonable arrangement, but without including such a stipulation in your custody agreement, you may find yourself sitting home alone on an evening when your children are in the care of someone who has no legal right to custody. Additionally, with right of first refusal, you can have the chance to do any of the following when your ex has a scheduling conflict during his or her custody time:

  • Taking the children to medical or dental appointments
  • Taking the children to sports practice, music lessons or other activities
  • Keeping the kids before or after school
  • Being with the children if your spouse goes on a business trip or vacation
  • Spending time with the children if your spouse needs alternate child care for more than a certain number of hours

You can negotiate the time under which your first refusal rights apply. For example, if your spouse will be away longer than three hours, he or she must call you first. Additionally, you and your ex will need to decide how much notice you require and how you will communicate the scheduling changes. Your legal advocate can assist you in making your right of first refusal as comprehensive as possible.

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