By Hope Tuber
One of many issues which may come arise in a divorce is who gets to watch the children while the other spouse is unavailable. You may want to ask for the right of first refusal. This means that when your former spouse is unable to watch the children for whatever reason you are seeking that they inquire as to whether you can watch the children before they employ a babysitter or another family member. In turn, you will also reach out also to see if your former spouse is available prior to hiring a babysitter or asking a family member. While at first glance, this may seem like a reasonable solution, it may present problems.
On a practical level, what you are seeking is that you and your ex-spouse contact each other every time childcare becomes an issue. This may or may not be realistic. Once you are divorced, communication may or may not be desired. Putting that aside for the moment, think about what time frame would trigger this provision. For instance, will the right of first refusal be required if the time is more than an hour, or two or three hours? What if your former spouse remarries or you remarry? Do you expect that despite a person in the house who can watch the children you must contact each other first? Would you want to contact your former spouse? What about the distance between the two houses? You may be subjecting your child to significant time in a car to effectuate this right of first refusal.
Ultimately, divorce requires an adjustment of lifestyles, and it may not be in the children’s best interest to request the right of first refusal. Of course, each case is different and will be driven by the facts of your individual situation. Your attorney will be in the best position to advise you about the right of first refusal.