“Right of First Refusal” Clauses in North Carolina Parenting-Time Orders

When parents share custody, scheduling conflicts are bound to happen. Work trips, emergencies, or personal plans can sometimes prevent a parent from exercising their scheduled time with the child. In these situations, some custody orders include what’s known as a “right of first refusal” clause — a provision that gives the other parent the first opportunity to care for the child before a babysitter, relative, or third party is called.

While this clause can benefit both parents and children, it can also create confusion or conflict if not carefully written. In North Carolina, courts consider these clauses on a case-by-case basis, focusing on what best supports the child’s stability and family relationships.

This blog explores how “right of first refusal” clauses work in North Carolina parenting-time orders, when they make sense, and what pitfalls to avoid.

What Is a “Right of First Refusal” in Custody Cases?

A right of first refusal (ROFR) means that if one parent cannot care for the child during their scheduled time — for a set number of hours or overnight — they must offer the other parent the chance to take over that time before turning to anyone else.

For example:

• If Parent A must work late or travel overnight, they must first contact Parent B to see if they can care for the child. 
• If Parent B is unavailable, only then can Parent A use a babysitter, family member, or childcare provider. 

The idea is to maximize each parent’s time with the child and reduce time spent with third parties, strengthening parent-child bonds.

Are “Right of First Refusal” Clauses Required in North Carolina?

No. North Carolina law does not require parenting-time orders to include a right of first refusal. However, judges can approve or impose such a clause if it serves the child’s best interest under N.C. Gen. Stat. § 50-13.2.

Often, these provisions are included by agreement between parents or after a recommendation from a mediator or parenting coordinator. The court may decline to include one if it believes the clause would increase conflict or disrupt the child’s routine.

Common Types of Right of First Refusal Clauses

Because every family’s situation is different, right of first refusal clauses can be customized. Typical versions include:

1. Short-Term Clauses — Apply only if a parent will be unavailable for a certain number of hours (for example, 6–8 hours). 
2. Overnight Clauses — Triggered only when the parent is gone overnight or longer. 
3. Extended Clauses — Apply to any situation where the parent cannot personally supervise the child during their time, regardless of duration. 

The clause should clearly define what counts as an “absence” — otherwise, parents may disagree about when the rule applies.

Benefits of a Right of First Refusal

When used appropriately, right of first refusal clauses can promote stronger family connections and improve cooperation between parents.

Key advantages include:

• More quality time with each parent: The child benefits from additional one-on-one time instead of third-party care. 
• Reduced childcare costs: Parents can save money by watching the child instead of hiring a sitter. 
• Flexibility and fairness: Both parents get extra time with the child when opportunities arise. 
• Encouragement of co-parenting: It fosters communication and trust when parents cooperate respectfully. 

Courts tend to view parents positively when they use these clauses to support stability and consistency for the child.

Potential Pitfalls in High-Conflict Cases

While the idea of right of first refusal sounds simple, it can become problematic in high-conflict custody situations.

Common issues include:

• Frequent disputes: Parents may argue over whether an absence qualifies or whether proper notice was given. 
• Last-minute disruptions: Constant calls or schedule changes can create instability for the child. 
• Boundary violations: One parent may use the clause to monitor or control the other’s time. 
• Emotional strain: Repeated contact between high-conflict parents can increase stress and tension. 

Because of these risks, judges sometimes avoid adding a right of first refusal when communication between parents is poor. In such cases, the court may prefer a parallel parenting plan, where each parent operates independently with minimal interaction.

Drafting a Clear and Effective Clause

If you and your co-parent agree to include a right of first refusal, it’s essential to make the terms specific and practical.

A good clause should include:

1. A clear time threshold (e.g., absences longer than 8 or 12 hours). 
2. Notice requirements, including how and when each parent must be contacted (text, email, phone, or parenting app). 
3. Response deadlines (for example, the other parent must respond within two hours). 
4. Transportation responsibilities (who picks up and drops off the child). 
5. Exceptions for emergencies, family events, or regular childcare arrangements. 

The clearer the language, the easier it is to follow and enforce — and the less likely it will become a source of new conflict.

How Courts Enforce (or Modify) Right of First Refusal Clauses

If one parent consistently violates a right of first refusal clause, the other can file a motion for contempt or a motion to modify custody under N.C. Gen. Stat. § 50-13.7.

The court will look at:

• Whether the violation was intentional. 
• Whether the clause is clear and enforceable. 
• Whether enforcing the clause serves the child’s best interest. 

If ongoing conflict continues, the court may narrow or remove the clause altogether to reduce tension and maintain stability.

When a Right of First Refusal May Not Be a Good Idea

A right of first refusal can backfire in certain cases, including when:

• Parents live far apart, making last-minute exchanges impractical. 
• One or both parents have inflexible work schedules. 
• Communication between parents is hostile or unreliable. 
• The child’s schedule or personality makes frequent transitions difficult. 

In such cases, the court may find that stability and predictability outweigh the benefits of increased parental time.

Key Takeaway

“Right of first refusal” clauses can strengthen parent-child relationships when used responsibly — but in high-conflict cases, they can lead to more arguments than cooperation. The success of this clause depends on trust, flexibility, and clear communication between parents.

If you’re considering adding or modifying a right of first refusal clause in your custody order, speak with an experienced North Carolina family law attorney. The team at Martine Law can help you craft a parenting plan that promotes your child’s best interests while minimizing unnecessary conflict.

Contact us today to discuss your case and explore your custody options.