What exactly is the Right of First Refusal? The Right of First Refusal requires a parent in possession of the children to notify the other parent if they are going to be away from the children for a certain extended period of time while in possession of the children. This allows the parent not in possession of the children the ability to have the children in lieu of the other parent having someone else watch the children.

Generally, in Texas the Right of First Refusal is an agreed upon provision in a final order involving children as it is not a specific law found in the Texas Family Code. I have seen different variations of the Right of First Refusal depending upon the situation. For example, the time period stated that a parent will be away from the child and therefore must notify the other parent can range from four hours, to overnight, to a certain period of days. Some provisions state that the Right of First Refusal is not invoked if the child is in the care of a family member or at a friend’s sleep over.

As reported by Fearless Fathers, Illinois is in the process of trying to pass a law that makes the Right of First Refusal mandatory in all cases involving children. In my experience, a Right of First Refusal provision can create many issues in the co-parenting relationship that can in turn make the Right of First Refusal unworkable. It is important to fully explain to clients how the Right of First Refusal works as well as give clients examples of present day situations that would invoke a Right of First Refusal.

Here is an example I always give to clients considering a mutual Right of First Refusal:

“What if during your one month summer period of possession you would like to send your children to stay with your parents for a week? It seems reasonable doesn’t it? However, if your Right of First Refusal states that it will be invoked if you are going to be away from your children overnight, the provision does not permit you to have your children stay with your parents if you are not going to be present. Therefore, it is important to state that the provision does not apply in situations in which a family member is watching the children.”

This same example can also be used if you want to send your child to summer camp. The Right of First Refusal would not permit this absent the other parent’s agreement. Therefore, it is imperative to explain to a client all the different situations that can arise in regular day to day life and how the Right of First Refusal can affect how a parent will have to handle those situations.
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.