Can I Leave my Kids with my New Spouse if my Ex Has the Right of First Refusal?

Ah, the right of first refusal: it’s a tricky thing.

The right of first refusal (sometimes called the “first right of refusal”) is a long name for a pretty simple concept, namely: parental care is better than non-parental care. Really, the right of first refusal means that if a parent cannot watch a child for more than a certain period of time, then the parent must offer care to the other parent.

And while this is a simple concept, it’s not simple in the real world.

The right of first refusal creates all sorts of problems. For example, if your right of first refusal time period is three hours, you have to tell your ex whenever you won’t be around the kids for three hours. Since that happens every few days, you’ll call your ex constantly about where you are and why you’re not with your children.

Want to go on a date? You have to call the ex. Want to go to a church activity? You have to call ex. Want to go to a party? You have to call the ex.

You see the problems here, right?

New Spouses and the Right of First Refusal

One of the most serious issues with the right of first refusal is: what do we do with new spouses?

New spouses aren’t technically parents — they’re stepparents — so they don’t fall under the “parental care” language used in right of first refusal clauses.

But this creates serious problems because you treat your new spouse like a parent, right? So, we have a parent, who you treat as a parent, who isn’t really a parent and can’t be left alone with the kids without having to tell your ex, who can come get the kids so they’ll be with a parent.

It’s a mess.

(Note: this, and a hundred other reasons, is why we usually don’t include the right of first refusal in our divorce decrees.)

So, how can you address this issue of not being able to leave your kids with your new spouse when you have the right of first refusal?

Well, you have to plan ahead. What I mean is when you write the right of first refusal clause in your divorce, you have to include new spouses in the definition of “parental care.”

The language can be as simple as this: “The right of first refusal applies to parents providing care for their children, and spouses are included as parents.”

There are any number of other ways to express the same sentiment, but you get the idea.

In the end, including new spouses as “parents” in the right of first refusal is pretty simple, but you have to think ahead, otherwise you could run in to some serious difficulties after your divorce.