Right of First Refusal in Nebraska Custody Cases
The Nebraska Parenting Act requires a parenting plan be developed in any case involving child custody. In this plan, parents will hopefully mediate, or the judge will order, items like which parent(s) gets legal and physical custody, specific holiday and vacation time, and access arrangements for kids. The goal of most parents is for this to be the first, and last time they have to go through the legal process in their custody case.
Having a Right of First Refusal, or RFR in your plan can make it more likely you are relitigating that very issue in the future. Generally speaking, it is understood each parent’s time with their kids is their time to spend as they see fit. Judges understand there is already conflict between parents in custody cases. Therefore, giving parents autonomy over their parenting time is the default in plans. However, parents can agree in mediation, or request from the court that there be a Right of First Refusal in their decree. If the custodial parent is unavailable for a period of time, the non-custodial parent has a right of first refusal to reclaim their parenting time in the other parent’s absence. RFR’s typically range anywhere from a couple of hours to an entire day.
You do not have to be an attorney to see the potential problems with such a clause. It gives the non-custodial parent the ability to cut into the custodial parent’s time should they be unavailable. This unavailability could be due to work, health issues, family emergencies, etc., all legitimate reasons to be sure. Such a clause can be misused or abused by the noncustodial parent to monitor, intrude upon, or otherwise manipulate the custodial parent’s time to ensure the RFR is followed. Conversely, the unavailable, custodial parent may also violate the RFR when they are not exercising their regular time; i.e., by not making the child available to the non-custodial parent. An RFR requires a good deal of coordination between co-parents who are already at odds over other matters.
Most judges will not enter an RFR in a decree unless it is agreed upon by the parents. And, if it is agreed upon, the judge must still find it in the child's best interest. Judges, like parents, typically do not want to see the same case in front of them unless necessary. An RFR may be wanted in a plan, but it is usually not necessary in a plan. And, if it is in a plan, it should be well-tailored to address specific facts or concerns when a parent is unavailable. For example, an RFR during evenings when the custodial parent has to work overnight may make sense for your family.
Whose parenting time is it? Yours, unless you agree to an RFR with your co-parent, or it is otherwise entered by the court. And, if entered, it should be well-tailored to meet the specific needs of your family. For further assistance and advice with this and other issues in your case, please contact the experienced team of family law experts at Slowiaczek Albers & Whelan PC, LLO to schedule your initial consultation.