Texas Legal Glossary · Family Law

Right of First Refusal (Custody)

Written and reviewed by Shane M. Boasberg, founder of SMB Law, PC · Licensed in Texas since 2003 · Updated October 2026

Definition: A right of first refusal in a Texas custody order is an agreed provision requiring a parent who cannot care for the child during scheduled time to offer it to the other before using a third party caregiver; the Family Code does not require it.

Also called: ROFR, first right of refusal, first option to care

What a right of first refusal means in Texas

A right of first refusal is a clause parents add to a parenting plan that says, in substance: if you will be away from the child for more than a stated period during your possession time, you must offer that time to me before arranging other care. The Texas Family Code does not mention it. There is no statutory right of first refusal and no default wording. It exists only when a court order or agreed decree contains it.

The idea is simple. If a parent is available, the child spends time with a parent rather than a third party caregiver. The dispute is in the details: how long an absence triggers the right, whether grandparents count as third parties, and how the offer must be made.

How it works in practice

Common thresholds are an absence of four hours, eight hours, or an overnight. Shorter thresholds generate more friction. An overnight threshold is the most common in Austin area orders. Orders typically require the offer by text or a co-parenting app, set a response window, and state that declining does not shift the schedule.

Travis County judges do not routinely order a right of first refusal when parents disagree about it. Some view it as a source of conflict. It appears most often in mediated settlement agreements and agreed decrees. Vague language such as reasonable notice tends to be unenforceable in a contempt action.

Why it matters in your case

For a parent with limited possession, the clause can add real time with the child. For a parent with an unpredictable work schedule, it can feel like surveillance. A well drafted clause states the trigger in hours, defines who counts as a third party, and spells out the notice method, which makes enforcement possible if it is ignored.

Example

Jasmine and Trevor’s agreed decree includes a right of first refusal with an overnight trigger. Trevor has a two night work trip during his week with their daughter. He must text Jasmine the dates 48 hours in advance and offer her the two nights. Jasmine has 24 hours to accept. If she declines, Trevor may leave the child with his mother. If he skips the offer and uses a sitter, Jasmine can file to enforce.

This entry explains Texas law in general terms and is not legal advice for any specific situation. Statutes and case law change; the date above reflects the last review.