Has your ex been following the rules so far in this divorce? No?

Then what the hell makes you think they'll follow the right of first refusal clause—spoiler: they won't, but you will, and that's exactly how this bullshit clause destroys you.

Right of first refusal is one of the biggest mistakes you can make in a high-conflict divorce. I've lived it, I've coached hundreds through it, and I'm sick of watching good parents get screwed by this clause.

Here's what actually happens: You need to attend a childfree wedding, so you call your ex per the clause. They're like, "Oh yeah! I'd love extra time with the kids! Go have fun!" You go, have a good time, come back the next day—and your kids are walking out with their heads down. "Dad said you chose partying over us." And your ex hits you with: "I'm gonna use this against you in court."

Wait. What the actual f? Twelve hours ago they were all about that extra time. Now it's ammunition.

And here's the kicker: Your ex will never follow this rule themselves. While you're being the perfect rule follower, they're leaving your kids with their new girlfriend for three days straight. With the neighbor lady. With their mom. With literally anyone except offering you the time first. You'll catch them, have proof, and they'll say "Oh, I forgot" or "It was only a few hours." They will not follow the rules. Ever. But you will.

What We're Covering:

• How right of first refusal actually works - And why it only works against you
• Real weaponization examples - Including my scuba trip story that became a child support argument
• Why you can't control who watches your kids anyway - You lost that at "divorce"
• How this eliminates your support system - No grandparents, babysitters, or village help
• The perspective shift - Your kids will figure out who's actually showing up
• Life happens - Work trips, emergencies, dates, parent-teacher conferences—shit happens
• The money angle - They'll use "extra time" for child support modifications
• How to negotiate leaving it out - Show them how it restricts them too

The Truth:

You're looking at 50/50 custody. You know who else only gets 50% access now? Grandma. Your best friend. Your entire village. And if you include right of first refusal? Those people can't help you at all. No sleepovers at grandma's. No friend sleepovers. Nothing. Your high-conflict ex will be that petty.

Courts won't referee this. File contempt in January, get a hearing in March, and by then they've cleaned up their act. "Just that one time, Your Honor." Meanwhile you followed every rule and they broke every single one.

Let Me Save You Some Serious Pain:

Don't put right of first refusal in your parenting plan. Period.

I don't care if your lawyer says it's "standard." I don't care if it sounds fair. Don't do it. You'll be the only one following it. Your ex will weaponize it. Your kids will be told you don't prioritize them. You'll lose your support system.

If you're dying on this hill, check out my Parenting Plan Masterclass with Playbook for the do's and don'ts. But I'm telling you: you will regret it.

My Advice (And I Really Mean This):

Change your perspective. Accept you can't control what happens during their time. You can't stop the new girlfriend from babysitting. You can't control any of it. Take it off your list.

Your kids will figure out who's actually showing up and who's dumping them constantly. When they realize they're always with grandma instead of mom, or the girlfriend instead of dad, they're getting a fast education in reality. That's not hurting you—that's helping them see the truth.

Time is all you've got with your kids. Don't waste yours by following rules your ex never will.

Here’s What You Can Actually Take Away:

• You'll Be the Only Rule Follower - You're following right of first refusal religiously while your ex is leaving the kids with their new girlfriend for three days straight and never offering you anything.
• This Clause Eliminates Your Village - Say goodbye to babysitters, help from grandma, friend sleepovers, and emergency backup. Your entire support system gets cut off during your parenting time.
• Courts Won't Referee This Bullshit - By the time you get a contempt hearing months later, they've cleaned up their act and it's "just that one time, Your Honor." You have proof of 14 violations and nothing happens.
• Your Kids Will Figure It Out - When they're constantly dumped with grandma or the girlfriend instead of actually spending time with that parent, your kids are getting a fast education in who really shows up.
• Life Happens and You WILL Need Help - Work trips, weddings, emergencies, parent-teacher conferences, dates, three days of diarrhea. You can't predict when you'll need to step away, and this clause makes everything impossible.

The Truth Bombs

• High-conflict people will leave kids with neighbors before they'll ever follow the rules of right of first refusal, that's just the ugly truth.
• You're going through a divorce and your kids now only see grandparents, aunts, uncles, and friends 50% of the time. Don't make it worse by saying those people can't help you either.
• They'll happily take the extra time with the kids, then turn around and tell your children you chose partying over them and threaten to use it against you in court.
• Right of first refusal clauses sound really good until they wreck your life because you'll be the only one following the rules while your ex breaks every single one.
• The perspective I want you to have is: can't stop it, can't control it, take it off your list. Your kids will figure out who's actually there for them.

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This podcast exists because way too many parents are slogging through divorce quietly and thinking they are the only ones dealing with this mess. You can share your story, ask real questions, or send in topics you want broken down without the fluff. Stories can be shared anonymously, and no, this is not legal advice, but honest conversations are where clarity actually starts.

Samantha Boss: All right. In a previous episode we talked about right of first refusal and how I don't recommend including it inside of your parenting plan. So today we're gonna talk about why, in more specific detail, why I believe right of first refusal clauses—they sound really good until they wreck your life.

Now, what is right of first refusal?

Well, first and foremost, it's the example of, let's say I got invited to a wedding on a Saturday that said no children. My children were not included on the wedding invite. Now I'm gonna go to the wedding and the reception because it's a dear friend of mine, a coworker, hell, even a distant relative, right?

And it says no kids. But it's my weekend with my children. So right of first refusal, if it is written into your parenting plan, suggests that you are required to call your ex and say, "Would you like the kids? I have to go do something. I am required to ask you if you'd like time with the kids while I have to step away."

Here's Where Everybody Goes South on This Deal

Now, here's where everybody goes south on this deal. First off, we overshare what the hell we're doing. We say, "Hey, I got invited to a wedding and I can't take the kids." "Oh, you're going to that wedding?" And now we're having a dialogue about the wedding. No, we're not here for that. I'm not doing that with a high conflict ex. We're not talking about my plans.

Right? But you do. You overshare because that's what we all do because we think we're still friends, or we think we should, or we think we have to justify why we're asking them to watch the kids.

But essentially, let's get back to it. I now say, "I have plans. I need to step away. Can you pick the kids up? Let's say four o'clock and just keep them overnight because it'll be late when I get done." "Oh, well what are you doing?" "It'll be late when I get done. So just, do you want the kids or not?" Boom. They say, "Yes, I'll take those kids. I would love extra time with my kids." And you're like, "Oh, okay. Well, I don't feel like that's that bad. Like, okay, cool, this worked out. I get to go to the wedding. They're gonna spend extra time. It works."

But then I go pick up the kids the next day, and then as they're walking out the door back to me, their heads are down. And I'm like, "Hey, what's going on? What's going on?" And they're like, "Oh, in this hypothetical situation, this role playing situation, Dad said that you picked partying over us. Dad said you'd rather spend time with your friends than be with us. Dad said you'd rather have alcohol than spend time with us. That's why we had to spend the night here."

Wait a second. What did you just say? "Yeah, dad said, dad said..." And as dad approaches the door in this hypothetical story, he states something like, "I'm gonna use this against you in court. She'd rather go out and party all night than watch these kids."

Now backtrack. Twelve hours ago, you were a cat meow on a yes. You wanted extra time with your kids. Now it's being used against you. And this is just one hypothetical example that I could come up with, but there's lots of occasions where as a single parent, you need to step away.

Life Happens: You Can't Predict Everything

And everybody has this whole idea that they're like, "Oh no, Sam, I want my kids every second of the day. I want my kids and I want my kids, and I'm not gonna do anything while I have my kids. I don't wanna participate in anything while I have my kids."

You can't predict that, Stacy. I love that for you, but that's not how your life will turn out because there might be a school function where literally parent teacher conferences, they put on the invite and say, "You may come but do not bring any of the younger siblings." And you're like, "Well, hell. As a single parent, what am I gonna do? What am I gonna do?"

There's plenty of places that say don't bring your children. What if you need to travel for your job once a year even? What do you do? What if, God forbid, the man of your dreams is on a dating app and says, "Hey, can you go out for pizza on a Tuesday?" And you're like, "Ugh, I got my kids." Now granted, I'm gonna recommend do a date when you don't have your kids. But things happen, right? Things pop off.

What about an emergency? I don't know. You got diarrhea for three days. You got COVID. You were in a car accident. You got chicken pox. Shit happens all the time.

What about just last minute mistakes with the schedule? Like, "Oh shit, I scheduled something I totally forgot. Like I have to pick up the kids early from school today. Can you just have them and I'll pick them up later?" Things like that. Play dates, sleepovers, camps. There's anything that can pop off that you need to take your kids to that maybe you can't take all the kids or things that you need to do that the kids can't come.

So there's reasons you may have to step away, Stace. You get invited to a bridal shower and it says right on there, no kids. And right of first refusal means you can't use babysitters. Hell, you can't even use grandparents because it says in vague detail, "You must give your ex the right of first refusal."

Now in my Parenting Plan Masterclass with Playbook, I go into if you absolutely are dying on this hill that you want this clause included, I'll talk about the do's and don'ts. But in general, I'm just gonna rattle your cage a little bit.

Think About This: Your Village Just Got Cut in Half

Think about this. You're going through a divorce. You're gonna end up at worst case scenario, 50/50 on time. Let's just say 50% of your time, your kids are with somebody else and they're only with you 50%. You know who else only now gets to see your kids 50% of the time? Grandparents, aunts and uncles, first cousins, best friends.

So now in your divorce, your kids went from access to all of those people all of the time to 50% of the time.

And if you include right of first refusal, those people can't ever help you with the kids. They don't get to go spend the night at grandma's and have 7-Up and crackers late at night. They don't get to go to a friend's house and spend the night because you have right of first refusal, and that's how petty those high conflict people get.

They won't even let your kids spend the night at a friend's house because you're not with them.

So when you wanna get into the specifics, and I know people are gonna say, "Well just put a time limit on it, Sam," here's the other half of this that you're not figuring out. High conflict people will never, ever in their life follow these rules of time associated with right of first refusal.

If you've got a 24 hour rule, meaning you can use whoever you want for 24 hours, yeah, you're following that rule, Stacy. You know who's not? Steve. Steve's gonna be gone for 72 hours and have his mom watch the kids, but never tell you or offer you because he didn't plan on being gone for 72 hours. He didn't plan on it. He did. But he is gonna lie to you and say he didn't.

So while you're over here being the perfect little rule follower that you are, 'cause you hate contempt and you hate confrontation, you hate just breaking the rules, Steve is going to break every rule known to man around right of first refusal.

High Conflict People Will Never Follow These Rules

He'll have girlfriends or boyfriends watching your kids. He'll have grandparents. He'll have the brother. Hell, he'll have a neighbor lady watching your kids before they will ever follow the rules of right of first refusal. That's the truth. That is the ugly truth about it.

And then you'll catch them in a lie. You'll catch them in the act and you'll be mortified. "I can't believe you're not following the rules of this. I should have the kids right now." They'll make up some poor, pitiful woe is me excuse as to why they didn't remember. They forgot. They tried asking you but you didn't respond. And it gets really messy really fast because you're a rule follower and they are not.

Have they been a rule follower so far? Have they been following the stuff? No. What makes you think that they're gonna follow these rules? They're not going to.

Do you know how many girlfriends and boyfriends I know are watching kids and they have right of first refusal in their parenting plan and they're like, "Eh, it was only for like a half a night. Eh, it was only for a couple days. I'm not gonna bother the other side with that. They don't need to know."

No thank you. No thank you.

So if you're in need of care, being the good parent, being the primary parent, being the parent that's rational, reasonable, and a rule follower, your ex will always say yes. "Oh my gosh. I would love extra time with those kids. Absolutely." But on the flip side of that, they're gonna rub it in your face, use it against you in court, and tell the kids that you think other things are more important over your own children.

How Do I Know This? Here's My Story

How do I know this? Here's a clear example. In my own divorce, shout out to my ex, my husband and I went on a lot of scuba trips. When we got together, we would go off and go for a week and go scuba diving. Once you get certified in scuba diving, you're like, "This is amazing." We went twice a year for a couple years.

Well, I gave him right of first refusal because I was gone. He could keep the kids, right? And when we offered, it was so generous. "Oh yeah. I'll keep 'em. Love it. Absolutely. Go have fun. Oh, send us pictures. Yeah. Go, go, go." Okay. Seems sketch, but okay. We went, had a good time, had a blast. Kids were taken care of. They were with their dad.

So fast forward. Going to court. "Well, I think child support should change because I had the kids 14 extra days last year over the standard equation that we had because she chose to go on two trips with her boyfriend at the time on a personal trip. So I had the kids more than her."

Now wait a second. Was this about having the kids more and just following the right of first refusal or was this about, you guessed it: Money. Money. It's always about money. It's always about money.

I've seen cases that I've coached where a woman or a man has left and said, "Hey, I got right of first refusal," drops the kids off. They've received receipts for pizza. "Well, I had to watch the kids for you, so you gotta pay me back for this pizza. I had to feed them while you were gone."

"You said yes to right of first refusal. You could have said no."

"Yeah, but I had to feed them. And it's not my night. It's really your night. I'm babysitting for you."

Oh, that's what this is? Babysitting? Cool. Glad to know that you think you want right of first refusal for this reason: "I don't want anybody watching my kids. I don't want no girlfriend watching my kids. I don't want new boyfriends watching my kids. Absolutely not."

Get Closer and Listen Up Real Quick

Get closer and listen up real quick. You will never stop that. You lost control over who watches your kids during the other parent's parenting time when you said, or you received the news that you were getting divorced. You lost all rights to that when you got divorced.

And here's just the ongoing of this while I'm just really pissing you off: You can't stop a girlfriend or boyfriend from watching your kids. 'Cause once it's happened, it's happened. By the time you go to court, they've stopped doing it and they're just gonna get their fingers shaken at them.

Watch other episodes as we talk about that. You're never going to stop it. Instead, I want you to change your perspective, and here's the perspective I want you to have, even if this is grandma, you know your old mother-in-law that you can't stand. You can't stand this woman. You couldn't stand her when you were married. Now you really can't stand her. She hates your guts. You hate her guts. It's common sense. Everybody in town knows it. But now she's watching your kids all the time, right?

And you're pissed. You're like, "I wish I had right of first refusal." No, you don't.

Because here's the perspective I want you to have from here on out, moving forward, knowing that you are in a high conflict divorce slash co-parenting journey. I want you to change your perspective and go, "Oh my gosh, my kids are gonna be around this person. I don't like these people. They're evil. They hate me. They're gonna talk shit about me."

They're gonna talk shit about you whether you're there, they're there by themselves, or dad or mom is with them. That's happening regardless. They'll do that at Thanksgiving in front of everybody. Don't think they need to be isolated with your children to do it. They will do it publicly. They will do it in front of the children. They will do it in front of your ex. There's no qualm about that. They're pieces of shit.

But here's the deal. The perspective I'm gonna take is: can't stop it, can't control it, take it off my list. But you know who else is gonna figure out that they're a piece of shit? Probably pretty quick if they're always getting left with them all the time. Your kids.

Your kids are gonna figure out, "Gee, why does mom always leave me with grandma? Mom is never here. She leaves us with grandma all the time. Why do we even have to go to mom? She doesn't even watch us. We're with grandma all the time."

"Gosh, when we go to dad's house, like we see him at bedtime. We're always with his girlfriend. Why do we even go there? We're never with him. He only shows up when it's time for us to go to bed."

Your kids are losing their time with their parent because their parent is dumping them off with people that you don't like.

So is it really hurting you to not have right of first refusal? Or is it helping because your kids are getting a fast-paced glance into the reality of who is in their life and why. Who is in their life, and why that parent is placing them at grandparents' house. That parent is placing them with girlfriends and boyfriends.

Your kids at a certain age will go, "Yeah, it's fun for a while. Cool for a while, but every time, this is getting ridiculous. This is getting ridiculous."

But if you think you're going to file contempt, which happens maybe now in January, you're not getting a contempt court date until March, if you're lucky. And by the time January to March happens, they're gonna be squeaky clean and be like, "Uh, it was just one time. I'm sorry, I won't do it again."

"What? You left our kids for a week with the neighbor."

"What? Yeah, but I asked you and you didn't answer the phone."

"What? There's no proof of that."

Again, a court's not gonna get in there and referee these right of first refusal disputes. They don't have the time or the capacity.

So I'm Telling You Now

So I'm telling you now, as a veteran, someone trained, someone certified, an expert: Don't put right of first refusal in there. And again, in the Parenting Plan Masterclass with Playbook, I walk you through if you absolutely must include it, here are the rules. Here are the rules. But don't put this in there. You will have huge regret.

There's no proof that they were available or unavailable. And I'm gonna tell you what high conflict people do: They don't respond. You could be like, "Okay, I need to know. I'm leaving Thursday. It's Tuesday." They're gonna tell you Thursday at noon whether you can or not, and you've already made plans. You already had your mom watching them because they never responded back.

But at the last minute, now they're available. And now you're like, "Well hell, I gotta cancel my mom because now they're available. And now my mom's gonna be mad 'cause she took off work to watch them. But now the high conflict ex at the last minute is available."

They will mess your life up with this. They are not going to follow the rules. This is who they are. Believe me when I tell you. But at least when they show you the first time that this is what they're gonna do to you every time, don't be a slow bus learner like I was.

Don't Be a Slow Bus Learner Like I Was

I was on the slowest bus of figuring out this is what I was dealing with. I thought, "There's no way. There's no way." And I was on the slowest moving bus of like, "Sam, warning sign, warning sign, warning sign." Here I am in the bus going, "Nope, I don't see it. I don't see it. There's no way. There's no way. There's no way."

It was right in front of me what I was dealing with, and I'm like, "There's no way somebody would do this. There's no way."

That day I went to court about something else. God knows what it was for, and he said that. I looked right at him. We're in open court and I was like, "You enjoyed that extra time with him. Now you're using it against me?"

And the judge, clear as day, heard every word I said, and told me to sit down and shut up. But in the court proceeding, she said, "Sir, we don't change calculations on special circumstances, like a vacation here and there, because those can't be guaranteed every year."

He was like, "Oh, she's done it two years in a row."

"Okay. It's not a substantial continuing behavior."

Right? We all got into that in another episode on vague wording. But she said, "Sir, just enjoy the extra time. Just enjoy the extra time with your kids. 'Cause that's what it's about."

And you've heard me say this in this episode, in other episodes: time is all you got with your kids.

So do I recommend, you know, dumping your kids with family and relatives and being gone all the time? No. But are there certain situations that you need to step away? Yeah.

Do you wanna go do a morning workout class and have a neighbor lady come watch your kids? 'Cause that's the only time you have? Sure. If you're gone an hour, they're watching their iPads anyways. Is it okay to run out and drop off a gift somewhere and stay for an hour? Sure. Is there opportunity for you to need to work a second job and have grandma watch them one night out of the weekend? Yep. Because in this economy we need to pay some bills. So I'm gonna have to bartend. I'm gonna have to wait tables, I'm gonna have to sling some stuff to pay some bills.

You putting right of first refusal in your parenting plan will only mess you up later. That's it. And I know you want it. 'Cause you don't want your kids left with strangers. You don't have control over that. They're not gonna follow the rules. You'll be the only one following the rules. And then you're gonna feel dumb that you put it in there for yourself because you would've followed the rule without it.

So don't include right of first refusal. Do not let Larry, the lawyer, say it's standard, has to be included. Don't want it. And when you bring it up to your ex that you don't want it, explain how it'll benefit them. Hey, your mom. Yes, I know the woman that I don't like. She can watch the kids, but if you put that in there, she can't watch the kids.

Boom. They'll be okay with not putting it in. You gotta show your ex how everything you're asking for benefits them, not you, not the kids, even how it benefits them.