The right of first refusal seems straightforward.
It’s the idea that parental care is better than non-parental care (i.e., surrogate care), so parents should have the opportunity to provide care before surrogates provide care.
(For a more in-depth treatment about what the right of first refusal entails, click here.)
Makes sense on the surface, but it starts getting complicated quickly.
For example, is a new spouse “parental care” or “surrogate care”?
This seems like a silly question. “Of course a new spouse is parental care. I mean, a spouse is a parent.”
That assessment is completely logical, and it’s not necessarily correct.
It all depends on how “parental care” is defined in your divorce decree. If the definition of parental care does not include stepparents, but only includes mom and dad that were part of the divorce, then the new stepparent is considered surrogate case.
And if the new spouse isn’t parental care, you have to offer your ex the kids before leaving them with your new spouse.
Crazy, right? But that’s the way it is if your right of first refusal languages wasn’t written well.
So, what can you do if your new spouse isn’t included?
You’ll need to modify your divorce decree to include your spouse. That may seem overkill, but taking care of the problem now is a lot better than your ex telling you you can’t leave your kids with your new husband or wife.
Read your right of first refusal language. If you need to change it to cover your new spouse, take the time and change it.
You’ll be happy you did.
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