The right for one parent to care for the children when the other parent is unavailable during their parenting time to care for the children has developed over time into an actual section of the Illinois Law which provides that, “if a party intends to leave the minor child with a substitute child-care provider for a significant period of time. That party must first offer the other party an opportunity to personally care for their minor child” Oftentimes parents would incorporate this provision into their Joint Parenting Agreements and agree amongst themselves what that time period would be that would invoke the right of first refusal.
How the Right of First Refusal Works
As an example, parents could agree that the right of first refusal would be invoked if one of the parents were gone overnight. They could agree to a period of time. I have worked with parties who agree that the time period could be as long as 12 hours or as short as 4 hours. When the Laws regarding custody in Illinois were changed in 2016, the law incorporated a section called “Care of minor children; right of first refusal” and provides that if a court awards parenting time to both parents the court may consider whether or not to award to one or both of the parents this 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 which are found in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 602.7). When the court reviews the best interest factors they can then decide if one or both parents will have the right of first refusal and detail the following:
- the length and kind of child-care requirements invoking the right of first refusal;
- notification to the other parent and 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 very well make a finding that it is in the child’s best interests to spend time with their parents, as opposed to a babysitter or other care provider if the other parent is available – hence the right of first refusal. However, there are also situations when the parents have a very difficult and strained relationship and the courts determine that it is best to minimize the interactions between the parents so they do not grant either parent the right of first refusal – in this case, the parents have their specific parenting time and if they are unavailable they are charged with the responsibility to find care for their children.
Right of First Refusal is Not Automatic
It is important to keep in mind that even though the legislature has incorporated this right of first refusal into the statute, it does not mean that it is automatically ordered by the Court. It has to be found to be in the best interest of the children for this provision to be ordered. In addition, the court could award one or both parents the right of first refusal. It is often a mutual provision but the law allows for the court to make this determination on a case by case basis to award this right to one or both of the parents.
Important to Detail Notification Requirements
If you are going to a wedding during your weekend parenting time and will be gone from noon until 10 p.m. (10 hours) and you have a right of first refusal that is invoked in a 6-hour absence, you would be required to contact the other parent and offer them the 10 hours with the children before you make alternative care arrangements for the children. It is very important to detail the notification (should it be in writing, phone call) and the response time. If you text the other parent that you are going to be away for the amount of time detailed in your parenting order, it is important to also have details in the parenting order as to the response time. If you do not hear back from the other parent within a certain amount of time then you have to be able to arrange for care for the children. It is also important to detail who will provide the transportation for this period.
Choose a Reasonable Time Period
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.
In order for the right of first refusal to work best for the children and avoid last-minute changes and arrangements, the parents should let each other know about plans as soon as possible or as soon as they know they will have a conflict. This will allow plans to be made and the children can be made aware that they will be with the other parent and can be a very positive situation when the children see their parents communicating and being able to get along in such situations. It is when parenting exchanges are tense and full of conflict that a right of first refusal may not be best for the children as it can increase stress and tension which would not be in their best interest.
An Experienced Lawyer Can Help You with Right of First Refusal in Your Parenting Order
It is very important to work with an experienced lawyer to make the right of first refusal and 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 be willing to put in the effort that it will take to make this work.