Imagine one parent has their turn with the kids, but something unexpected comes up. Illinois law now ensures quality time for children with both parents. This is true even if one parent can’t fulfill their scheduled parenting time. The law states that if a parent (“party” in legal terms) needs alternative childcare for a significant period, they must first offer the other parent the chance to step in. This is called the “right of first refusal.” Parents often include this right in their joint Parenting Agreements, deciding together how long a period triggers this option.
Table of Contents
How the Right of First Refusal Works
As an example, parents could agree the right of first refusal applies if one is gone overnight. They can agree on a timeframe. Clients I’ve worked with agree on periods as long as 12 hours or as short as 4 hours. When Illinois child custody laws changed in 2016, a section titled “Care of minor children; right of first refusal” was incorporated. This allows courts awarding parenting time to both parents to consider awarding one or both the right of first refusal.
If the court is left to make this determination of whether or not to award a right of first refusal, they have to review the best interest factors in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 602.7).
The court reviews the best interest factors and decides if one or both parents will have the right of first refusal. The court then details the following:
- the length and kind of child-care requirements invoking the right of first refusal;
- notification to the other parent and the procedure and time frame for a response;
- transportation requirements; and
- any other action necessary to protect and promote the best interest of the children.
A court may find it’s in the child’s best interest to spend time with their parents instead of a babysitter if the other parent is available – hence the right of first refusal.
However, in situations with strained relationships, courts may determine minimizing parental interaction is best. In some instances, the court may not grant either parent this right. In these cases, parents have their specific parenting time and are responsible for finding childcare if unavailable.
Right of First Refusal is Not Automatic
While the legislature included this right in the law, it’s not automatic. The court must find it in the children’s best interests. The court can award it to one or both parents, depending on the situation. It’s often a mutual provision, but the law allows courts to decide on a case-by-case basis.
Important to Detail Notification Requirements
Imagine you have a wedding during your weekend parenting time (noon-10 pm) and your right of first refusal applies for 6-hour absences. You’d need to contact the other parent and offer them the entire 10 hours before finding alternative care. Your parenting order should detail notification requirements (written/phone) and response time. It should also clarify who handles transportation during this period.
Choose a Reasonable Time Period
Considering a reasonable timeframe for using the right of first refusal is important. Some clients I’ve spoken with prefer a two-hour window. However, this might not be practical for everyday situations, like running errands or attending appointments. In such cases, you wouldn’t want to call the other parent for every routine need.
Additionally, in emergency situations, the right of first refusal may not be practical. If something unexpected comes up, the parent exercising parenting time may not have enough time to reach out to the other parent. However, a parent cannot abuse this excuse and it must truly be an emergency.
Here’s the key point: For the right of first refusal to work best for the children and avoid last-minute changes and arrangements, the parents should communicate plans as soon as possible, especially if there’s a potential conflict. This allows for adjustments and informs the children about who they’ll be with. When parenting exchanges are tense, the right of first refusal might not be ideal, as it can increase stress for everyone involved.
An Experienced Lawyer Can Help You with Right of First Refusal in Your Parenting Order
It is very important to work with an experienced child lawyer in Chicago to make the right of first refusal as detailed and clear as possible.
You want to think about a reasonable time period for this right? I have talked with clients who want a two (2) hour period. This may not be practical since you may need to run to the store or the gym or have an appointment and you are not going to want to call the other parent for all of these routine errands. In addition, in an emergency-type situation, the right of first refusal may not be practical. That is, if something unexpected comes up, the party exercising parenting time may not have enough time to reach out to the other parent to see if they are available. However, a parent cannot use that excuse and it must truly be an emergent situation.
It is very important to work with an experienced child lawyer in Chicago to make the right of first refusal as detailed and clear as possible. You cannot think of every scenario. But, you can make the wording clear enough so that you can follow the agreement without issue. The main thing is that you must have good communication with the other parent. And, you need to be willing to put in the effort that it will take to make this work.
