The Right of First Refusal, Helpful or Hurtful?

Image courtesy of  Stuart Miles  at FreeDigitalPhotos.net

Image courtesy of
Stuart Miles
at FreeDigitalPhotos.net

I hadn’t really given too much thought to “the right of first refusal” until a client showed me the Liz Library article about it a few days ago.  I often recommend the Liz Library for a reference because the articles are insightful and linked to research on the topics, and my client found the article because of a post where I referenced the Liz Library.  I had not really contemplated this issue before.

My opinion on the Right of First Refusal is that one should not give it to the other parent without asking for the same right in return, and I do still believe that to be a wise move.  In your own case, you should always discuss that with your lawyer, of course, but I’d be surprised if any lawyer would not think it should be reciprocal. That is about as far as I’d ever thought about it, mainly because if a parent asks for it, a Parenting Coordinator or judge is likely to give it.  It is one of the tools in their arsenal to encourage co-parenting, and so they usually will use the tools they have.  That is my take on all things Family Court.  You would not be there if it wasn’t about co-parenting difficulties, and the Family Court loves their toolbox.

Do I think that the right of first refusal is a good thing?  No.  As with anything in double edged sword land of Family Court, it could be a good thing, but it can also be used as a weapon by the controlling, vindictive ex spouse.  Is your ex spouse trying to gain more parenting time by way of the right of first refusal?  Probably.  What else might they hope to accomplish by it?  Control, control, control, and engagement, engagement, engagement.  They either hope to ensure they are informed about everything you are involved in when you either would not or could not involve the children, or they are trying to create another reasons that you will need to contact them.  On its face, the right of first refusal makes sense.  A child should be with their parent when a parent is available to care for the child in the other parent’s absense.  In most cases, it is better to have a parent with the child before involving a third party.  Too bad we don’t look at that with legal custody, huh?  I digress.  This is why it is hard to say if it is a good or bad thing.  It is both.  What I mean by that is when it comes to a high conflict family, odds are that it is a bad thing.  It will most likely increase the conflict, and become more problematic than it is worth.  For the cooperative, low conflict divorced family, it would be a good thing.  The problem is that the right of first refusal is typically sought by high conflict parents.  A cooperative family is neither going to ask for the right of first refusal, nor will they need to have it written in a court order.  For the low conflict divorced family the right of first refusal is an automatic thing, or they trust the other parents judgement on who they will choose to leave the children with when they cannot be available and don’t fixate on such trivial things.

Any of these tools really are remedies for high conflict families and no one else.  Truth be told, no one should ever call them tools, as much as they should call them weapons.  It is just a sad fact.  There is a reason why your family cannot manage co-parenting.  There is a reason why I am not a fan of co-parenting in high conflict situations.  I understand that the circumstances that create high conflict cannot be fixed by court ordered anything, and that most court ordered things are more problematic than they are worth.  Unfortunately, when remedy is asked for by one party, court authorities have to offer you some kind of remedy .  If it were up to me, the courts would first determine if there has been a problem, for example, is the other parent leaving the children in someone’s care frequently?  The court should make that determination before they try to resolve a problem that doesn’t exist.  In other words, they should make sure there is a problem before they offer a solution.  the reality is that court authorities don’t generally think that broadly.  They should also look at the dynamics of the family from which a parent is asking for a remedy, and if the parent is using things to control or punish the other parent with, they should not deliver any more weapons to the equation.  This is why I continue to oppose the one size fits all, cookie cutter approach that is used in the Family Court System.

The courts don’t know much about High Conflict and what exactly drives it.  This is why they are ill equipped to offer remedies to it.  The court authorities continue to make the same mistakes that parents make when it comes to high conflict divorce.  I would coach the court authorities in the same way that I coach parents.  Less is more.  Court orders aren’t working?  Why add more?  A parent getting more information on the other parent increasing the conflict?  Why give them more?

What the courts should keep in mind is that they really do know some of the accusations that come out of high conflict divorces.  The accusations that come are abuse, alcoholism, drug use, mental illness.  If those accusations are coming, they may never be able to prove any of it.  That is a fact with how the Family Court operates.  They aren’t really looking for evidence of anything if you have joint custody, but what they could do with the accusations, is to know that you are likely a high conflict case and remedies don’t provide solutions in the high conflict divorce.  Instead, they provide weapons.  In the way that they would allow a cop to have a gun, but deny a psychopath a gun, the right of first refusal works great for the well intentioned good guys, but in the hands of a bad guy, the right of first refusal will be a dangerous thing.  The Family Courts need to start determining that in the high conflict family, one parent is a bad guy.  Even if they don’t want to put in the work of determining who the bad guy is, they need to acknowledge that there is one and take a less is more approach.  They should not offer remedies that can be used as a weapon.  Period.  They only need to recognize that there is at least one bad guy involved.

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About lifesdoorsmediation

I am a mediator, Life and Divorce Coach and an Instructor of a High Conflict Divorce Program.

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