What Is the Right of First Refusal in Family Law?
The right of first refusal means that if one parent can’t care for the child during their scheduled time, they must offer that time to the other parent before calling a babysitter, relative, or any third party.
It’s really about giving the other parent a chance to step in first. In everyday terms, it says to the other parent: If I can’t watch our child, I have to give you the option before I hire someone else.
In California, this concept appears in court forms as the Right of First Option of Child Care (FL-341(D)). People often use “right of first refusal” and “right of first option” interchangeably, but they mean the same thing.
Here’s the catch: it’s not automatic. Courts don’t include it by default, and there’s no law that guarantees it. You have to add it to your custody order, and the court has to believe it supports your child’s best interests.
Does the Right of First Refusal Apply to Work-Related Childcare?
Not unless you say so, clearly and specifically.
In California, right of first refusal clauses don’t automatically cover daycare, nannies, or after-school care during a parent’s work hours. Courts generally won’t ask a parent to disrupt a child’s regular routine just because the other parent is technically available.
Why? Because the law tends to favor stability and predictability, especially during working hours. If you want ROFR to apply to work-related childcare, your custody order must specify this directly. Otherwise, the clause typically applies only to non-work absences such as social engagements or appointments.
How the Right of First Option of Child Care Works in California
There’s no standalone law called “right of first refusal.” Instead, California courts apply this concept using broader legal standards, namely, the child’s best interest and the policy of ensuring frequent and continuing contact with both parents whenever appropriate.
That’s legal speak for this: ROFR is one of many tools a court might use to help your child stay bonded with both parents (frequent and continuing contact), but only if it supports your child’s overall well-being, stability, and safety (best interest).
This provision appears in FL-341(D), the Judicial Council’s form for adding additional parenting time clauses. You’ll typically attach this to your custody judgment or submit it as part of a Request for Order (RFO) when you’re seeking a change.
How Courts Typically Structure Custody Right of First Refusal Clauses
Most ROFR clauses fall into one of three buckets:
1. Overnight Trigger
This is the simplest and most common format. If a parent will be unavailable overnight, they must offer that time to the other parent. It’s easy to plan around and tends to support school-night stability.
2. X-Hour Trigger
Here, the clause kicks in if the parent will be gone for more than a certain number of hours, like 4, 6, or 12.
3. Caregiver-Specific Trigger
The clause applies if a third party or non-household member (e.g., babysitter or relative) would be caring for the child.
There is no legal requirement to use any particular trigger format; these structures are based on common practice and are not mandated by law. Simpler and clearer clauses are more enforceable in court.
Pros and Cons of Adding a Right of First Refusal Clause
Let’s look at when these clauses help, and when they don’t.
Pros of ROFR Clauses
- More quality time with your child without needing to change the existing custody schedule.
- Lower childcare costs, since the other parent gets the first chance instead of hiring a sitter or using daycare.
- Encourages positive co-parenting by keeping communication open around childcare needs.
- Helps both parents feel included in the child’s routine and special moments, even outside their regular custody schedule.
Problems With Right of First Refusal Clauses
- Overly broad or vague triggers (such as “any absence”) can cause disputes and may be difficult to enforce.
- Tight or unclear response windows (e.g., “reply within 10 minutes”) cause stress and unrealistic expectations.
- If you don’t clearly exclude school, daycare, or a grandparent’s regular help, the clause might force changes to routines that are already working.
- And if you live far apart or work long, fixed hours, ROFR can turn into a source of constant conflict, unless the agreement fits your real-life schedule.
A strong ROFR clause should reduce tension, not create it. The key is tailoring it to fit your actual schedules, distance, and co-parenting reality.
Domestic Violence and the Right of First Refusal
If your case involves domestic violence, California law under Family Code §3044 creates a presumption against granting custody, or increasing contact, to a parent who has committed abuse within five years of the incident.
That means ROFR clauses don’t apply unless that parent has already rebutted the presumption and shown the court that increased contact is safe and appropriate.
Courts may strictly limit, supervise, or outright prohibit ROFR in cases with domestic violence or protective orders. Every clause must prioritize safety and comply with all restraining orders.
How to Draft a ROFR Clause That Works in Real Life
A court-enforceable ROFR clause should clearly answer:
- Trigger event: Overnight, more than 6 hours, or when using a non-parent caregiver?
- Notice: How far in advance? What method? Text, email, or app?
- Response time: How long does the other parent have to respond with a yes or no?
- Logistics: Who drives? Where? What time?
- Conflicts: What happens if the child has sports, school, or tutoring?
- Exceptions: Does it apply during daycare, work hours, or to certain relatives?
- Distance limits: Will this only apply if you’re within 20 or 30 miles?
- Emergencies: What if there’s illness or an unexpected change?
- Safety language: Does it defer to restraining orders or supervised visitation?
Self-represented parents can write their own ROFR clauses, but legal review is highly recommended to ensure clarity and enforceability. Vague language may render a clause unenforceable in court.
Filing and Procedure: How to Add ROFR to Your Custody Order
Here’s how to get it into your custody plan:
If You’re Creating a New Custody Order
- Attach FL-341(D) to your judgment.
- Check the box for ROFR and write in your custom language.
If You’re Modifying an Existing Order
- File a Request for Order (RFO) explaining why ROFR supports your child’s best interest.
- Include your proposed ROFR language.
- Be ready to show how it supports stability, not just your personal preference.
County-Level Tips
County Practice: Some counties offer local forms or checklists, but this is not guaranteed. Parties should contact the local court’s self-help center to confirm current practice and available guidance.
Enforcing a Right of First Refusal Clause
If your clause is in your order but the other parent keeps ignoring it, you may have options, but only if it’s written clearly.
You can ask the court to enforce it through a contempt motion, but you’ll need to prove three things:
- The order was clear and specific.
- The other parent violated it knowingly.
- You can prove it with logs, messages, or records.
If your clause is vague or the violations are minor, the better path may be filing a modification request, asking the court to revise or tighten the language.
Keep detailed records and try to resolve minor issues without litigation. If the problem persists or is disruptive, consult with your attorney about your enforcement options.
Talk to a California Family Law Attorney About Your Child-Related Case
If your family law case involves custody, visitation, parenting time enforcement, child support, or safety concerns, we’re here to help.
We work with parents, grandparents, step-parents, and other caregivers across California who need clear legal guidance and a strategy tailored to their unique real-life situations.
Whether you’re facing court for the first time or trying to fix something that isn’t working, we handle child-related matters within California family law, and we take them seriously.
Schedule a case evaluation today. Let’s talk through your options.
FAQ: California Right of First Refusal Custody
What is an example of the right of first refusal in custody?
If Parent A has scheduled parenting time but needs to attend an overnight work trip, they must first offer the other parent (Parent B) the opportunity to care for the child before arranging a babysitter or asking a relative. If Parent B declines, only then can Parent A seek alternative care.
This gives both parents more time with the child and helps avoid third-party caregiving unless necessary.
Who usually gets the right of first refusal?
Either parent can receive the right of first refusal; it’s not automatically granted to one over the other. Courts may include it when both parents are capable caregivers and there’s a history of cooperation, or when one parent requests it as part of a parenting plan. It’s often used in joint custody situations to promote frequent contact.
Can the right of first refusal be added to a custody order later?
Yes. Parents can request to add or modify a right of first refusal clause by filing a post-judgment request with the court. The court will evaluate whether the change serves the child’s best interests, especially if circumstances have changed since the original order.
Does the right of first refusal apply to stepparents?
Only in limited ways. Step-parents aren’t usually considered legal substitutes for a parent unless granted legal guardianship or custody rights. If the parenting plan includes a right of first refusal clause, the parent must offer the other parent time before asking the stepparent to step in.
Does the right of first refusal apply when a parent is at work?
It depends on how the custody order is written. Some right of first refusal clauses specifically exclude regular work-related childcare (like daycare or after-school programs) to avoid unnecessary disruptions. Others apply only to overnight care or absences exceeding a specified number of hours. Always check the specific terms of your order or form FL-341(D).
