Originally published by The Law Office of Bryan Fagan, PLLC Blog.
The right of first refusal is an issue that comes up in family law cases that can cause even the most creative and experienced family law attorney to scratch their heads on how to proceed. Essentially, the right of first refusal allows a parent who is not entitled to possession for a specified period of possession to be able to take possession of the child if the other parent is not able to do so. Allow me to provide you with an example of how this situation could arise in real life.
Suppose that your ex-husband is scheduled for a visitation period with your son beginning at 6:00 p.m. on this Friday and ending at 6:00 p.m. on the following Sunday. In the morning on Thursday, he receives a phone call that alerts him to the fact that he will need to work this weekend. Since your divorce decree contains a right of first refusal, he must contact you as soon as he becomes aware of this scheduling conflict and provide you with your right to refuse visitation that is offered to you. You have the option to take possession of your son this weekend even though the divorce decree states this is your ex-husband’s weekend for possession of him.
We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. If you are not able to take possession of your child for a weekend visit, you may want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday. Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right?
How is the right of the first refusal defined in your custody orders?
This is the first question that we need to ask ourselves in relation to your particular circumstances. If you are considering whether or not to include a right of first refusal in your child custody orders, you and your attorney need to first think about how that term is going to be defined and applied as it pertains to your family. What is the specific period of time that a parent cannot be with the child that will cause the right of first refusal to be triggered?
You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.
Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. A compromise could be that if the parent were to become available to possess the child at a time after 9:00 p.m., the parent in possession of the child on a temporary basis could wait until 9:00 a.m. the following day to drop the child back off at the other parent’s home.
The other issue that we need to discuss is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available. It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.
How will extracurricular activities be handled?
In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. For instance, you may believe that your child should only be involved in extracurricular activities to the extent that they can make friends and build their self-confidence. However, your ex-spouse may believe that these additional activities are essential for the development of your child and that he or she has the potential to become a professional ball-player, musician or dancer. How can this fundamental disagreement be solved?
I have seen some families achieve success when each parent is allowed to select one activity for their child to participate in each semester of school. The costs for activities would then need to be divided up in some manner between parents. Additional activities (camps, classes, etc.) would be paid for by the parent who selected that activity. Transportation to and from activities would also need to be determined. If you and your ex-spouse earn similar incomes the costs could be split evenly. Otherwise, a proportionate split may be more appropriate.
Another issue that may be relevant to discuss for your family is whether or not both parents may attend practices or rehearsals. If you and the other parent can be around one another without issue then this is not a problem. However, if you all have shown an inability to be in close proximity to one another you may have to limit attendance to the parent who paid for the camp or activity. Both parents in most cases can attend performances and games, no matter what parent is in possession of the child on that particular day.
How will you be reimbursed for uninsured medical costs?
As a part of any child custody order, you or your child’s other parent will be made to be responsible for providing health insurance for your child. Whether it is insurance provided for by one of your employers, insurance through the private marketplace, Obamacare or Medicaid, your child will need to be covered. One of you will pay for that insurance or will reimburse the one who pays for medical coverage.
However, not every cost that your child will incur for medical treatment will be covered by insurance. These are called uninsured medical costs. Suppose that you take your child to a pediatrician appointment and he orders a test for your child that is not covered by insurance. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).
What I will advise clients to do is to negotiate to include a deadline by which medical bills have to be submitted for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.
I would tell you that it is common to have parents agree to split 50/50 uninsured medical costs. Since it is usually the primary conservator who takes the child to the doctor or for unscheduled visits to hospitals and such, it will be that parent who has to pay the bill upfront. What I tell parents in this position to do is to set up a reminder on their phone to submit bills by the end of the month to the other parent to be reimbursed, However, a good practice is to simply scan and email the bill to the other parent as quickly as you can. That way you have a record that the bill was submitted and you can be paid back as quickly as possible.
Issues related to military parents
If you are the primary conservator of your child and have been deployed overseas as a member of our military, you have the ability to designate an adult to exercise your possession and conservatorship rights while you are overseas.
The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child, but you could allow him or her to act in that capacity for as long as you are overseas and unable to do so yourself. However, if selecting the other parent to take these rights on a temporary basis were not in the best interests of your child, then a nonparent may be chosen instead.
Special provisions for special needs children
When you are involved in a case with a special needs child then you and your attorney will need to pay especially close attention to the rights and duties that you and your opposing parent have in relation to that child. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.
Both you and your child’s other parent will need to be able to provide to one another more detailed information regarding the child’s educational, medical and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. As a result, it may be necessary to have some special orders included in the parenting plan that requires you to share updated medical information with the other parent on an as-needed or regular basis.
You would need to come to terms with what your child’s specific needs are and then determine how frequently updates need to be provided to each other. If your child sees the doctor on a weekly basis, and you are the parent who always goes to the appointment, it may be necessary for you to provide a weekly update to your ex-spouse on your child’s condition via email or another electronic means.
More information on special needs children to be provided in tomorrow’s blog post
The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children that we have observed in our years of practicing family law in southeast Texas. If this is a topic that is relevant to you or your child, it is a good idea to head back to our blog tomorrow to read more.
In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.