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Kevin O'Flaherty

In this article, we discuss what you need to know about parenting time and the right of first refusal in Illinois and answer the following questions:

  • What is the right of first refusal for parenting time?
  • How does the right of first refusal work in Illinois custody cases?
  • Is the right of first refusal and parenting time negotiated during the divorce?
  • Are parents guaranteed the right of first refusal in Illinois?

What Is The Right of First Refusal For Parenting Time?

What happens when one parent wants to attend a wedding or has other plans during their normally scheduled parenting time? “They get a babysitter, or a family member to watch the child,” is probably what many would assume. But under the Illinois Marriage and Dissolution of Marriage Act, the right for one parent to care for the child when the other parent is unavailable to care for the child during their normal parenting time opens up the right of first refusal. The law in Illinois stipulates “if one parent intends to leave the minor child with a substitute childcare provider for a significant period of time the other parent must first be given the opportunity to care for that minor child.” Originally, parents were simply left to find an amicable agreement for handling these types of childcare situations with little or no legal support should a conflict arise, but over time the right of first refusal became baked into Illinois law.

How Does The Right of First Refusal Work In Illinois Custody Cases?

During the divorce negotiations, the two parties are encouraged to come to a reasonable agreement on as many issues as possible. Not surprisingly, ironing out the child custody agreement can be the greatest source of stress and tension throughout the divorce process. Because the right of first refusal doesn’t lay out any stipulations beyond the other party’s right to care for the child, the two parties must negotiate guidelines for how the right of first refusal will work. For example, the parents will want to agree on a consistent minimum or maximum amount of time that would trigger the right of first refusal. These don’t have to be strictly enforced, but having these guidelines will help to reduce the chance of conflict in the future.

Before the right of first refusal can even be considered in a divorce case the court must first award parenting time to both parents. From here the decision can be made to award the right of first refusal to one parent, both or neither. This decision can be arrived at amicably between the parents or left to the court to decide. If left to the court, it will consider what is in the best interest of the child when making the decision. Whether the court decides, the parents, or a combination of the two, the following should be described under the agreement:

  • The length and type of childcare requirements that would trigger the right of first refusal. For example, it would be disruptive if every time the parent needed to go to the store and could easily leave the child with another appropriate family member in the house, but instead had to contact the other parent under the right of first refusal and then wait for a response.
  • How the other parent should be notified and an expected timetable for a response. Without these guidelines, one parent could conceivably text the other parent at 1 am the night before knowing the other parent is asleep and then argue they did not receive a response within X number of hours.
  • Transportation requirements. Does one parent always drop off and pick up the child? Is it the responsibility of the parent who wants to care for the child while the other is out?
  • Whatever else is necessary to promote and protect the child’s best interest.

Is The Right of First Refusal And Parenting Time Negotiated During the Divorce?

Yes. Ideally, the parents will come to an agreement on their own. However, they may also lean on the court and their attorneys to counsel them on developing appropriate guidelines for parenting time and the right of first refusal.

Including as many details as possible in the Parenting Time Agreement regarding the right of first refusal is very important. While this sounds cumbersome, it will greatly reduce the chance for conflict should the need arise. Just a few items that the agreement should describe may include:

  • Detailing guidelines for notification and response time;
  • What to do when you do not hear back from the other parent in the agreed-upon amount of time;
  • How to handle an emergency situation;
  • What constitutes an emergency situation;
  • Maximum and minimum time period

Are Parents Guaranteed The Right of First Refusal In Illinois?

While the right of first refusal for parenting time is part of the law under the Illinois Marriage and Marriage Dissolution Act it does not mean that both parents will be granted this right by the court. If the parents have a difficult and strained relationship the court may find that it is in the child’s best interest to minimize interaction between the parents and thus refuse either parent’s request for the right of first refusal, requiring the parents to find other childcare options if they will be out.

Working with an experienced divorce attorney can make the difference between getting what you want from your divorce and being left high and dry. They can also help you draft a clear and detailed right of first refusal plan. The more organized and put together your argument the more likely you are to make a good impression on the court. If you have questions about divorce, parenting time, and the right of first refusal to parenting time give us a call at 630-324-6666.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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