Parents who choose to divorce or separate will need to address a wide variety of issues related to child custody. These include what is commonly known as legal custody, which covers major decision-making for the child, and physical custody or physical placement, which determines where the child will live. Along with major decisions detailing how parents will work together to raise their children and when they spend time with their children on a day-to-day basis, they may need to address exceptions to these rules and variances from these plans. One issue that may be raised in these situations is the right of first refusal.

What Is the Right of First Refusal?

As parents provide care for their children, situations may arise in which one parent will not be available during the time they are scheduled to have physical placement or visitation. In these cases, the other parent may feel that it would be better for children to be in the care of a parent rather than another caretaker, such as a babysitter, a grandparent, or a step-parent. This is where the right of first refusal comes in. This right will ensure that if a parent is ever going to be unavailable during a time when they are scheduled to have the children stay with them, they must contact the other parent and offer them the chance to take the children. Other childcare arrangements may only be made if the other parent refuses to provide care.

Wisconsin law does not require parents to include the right of first refusal in a child custody agreement. However, this does not prevent parents from creating rules that will apply in certain situations and ensuring that children will be cared for by a parent whenever possible. If parents agree to do so, the parenting plan created during their divorce or child custody case may address the right of first refusal and outline how these matters will be handled.

Parents who do wish to create a right of first refusal will want to consider the following:

  • When will the right of first refusal apply? A parenting plan may detail specific circumstances in which a parent will be required to offer the other parent the opportunity to care for the children. For example, unavailability for more than four hours may trigger the right of first refusal. However, parents may also want to consider the days and times in which the right of first refusal will be appropriate. For instance, if a parent works nights and plans to have a family member stay in their home with children between the hours of 12:00 and 6:00 a.m., it may not make sense for the right of first refusal to apply during this time, since children will be asleep and the other parent will not be able to spend any meaningful time with them.

  • How will parents communicate with each other about the right of first refusal? Parents may want to specify how far ahead of time they will need to notify each other that they will be unavailable and whether notifications may be made through phone calls, emails, or text messages.

  • How will transportation arrangements be handled in these situations? Parents may want to specify which parent will be responsible for picking children up and/or dropping them off when the children will be spending time with one parent during the other parent’s scheduled parenting time.

If you have questions about child custody in Wisconsin, or if you need help creating a parenting plan that will work for your family, the Milwaukee County family law attorneys of Gimbel, Reilly, Guerin & Brown, LLP can assist you. We have helped many parents create child custody agreements that provide for the best interests of their children, and we can do the same for you. Call us today at 414-271-1440 to arrange a free consultation.