by John Floyd, Jr.

Tennessee courts are required to fashion parenting plans in a divorce that permits both parents to “enjoy the maximum participation possible in the life of the child.” Many times, one parent will be unable to care for a child during their parenting time and may hire a babysitter or send the child to a daycare.  This raises the question of whether the parents are “maximizing” their parenting time. In some situations, it may be advisable for you to have a right-of-first-refusal clause in your parenting plan to make sure that you can maximize your time with your child.

For example, let’s say that a spouse would like to include a right-of-first-refusal clause as her soon to be ex-spouse travels often and for long periods of time. Her ex-spouse may be gone for two or three days at a time with little to no notice and has expressed that he may leave the children with a babysitter when these situations arise. The spouse may want to include a general right-of-first refusal clause in the parenting plan:

If either parent will be away from the child or cannot otherwise exercise parenting time for a period of more than twelve (12) hours, then he or she shall offer the first right of refusal to the other parent to exercise parenting time with the child.

If this clause is clause is included in the parenting time, the spouse will have the option to exercise parenting time with the children while the ex-spouse travels for work. This will allow the parent to maximize his or her time with the children as long as the same is in the best interest of the children.

If your soon to be ex-spouse travels often, works odd or long hours, has a family member that often cares for the child, you may want to include a right-of-first-refusal clause in your parenting plan. This clause would allow you to have the opportunity to exercise parenting with your children in the event your ex-spouse is unable to physically be with the children during his or her parenting time. A right-of-first-refusal clause may be general; however, it is advisable to fashion a right-of-first refusal clause specific to your situation and projected parenting times.

On the other hand, the soon to be ex-spouse may not want a right-of-first-refusal clause in the parenting plan if he or she intends to be periodically away from the children during his or her parenting time. The spouse may risk a material change in circumstances occurring with the children spending more time with the other spouse. This could lead to one parent petitioning the court to modify the parenting plan to reflect the increased amount of time spent with the children.

It is important to carefully consider whether you want to include a right-of-first-refusal clause in your parenting plan in order to maximize your parenting time with your children.